The School of Public Policy offers a Master of Public Policy, as well as joint degrees
with Pepperdine's top-ranked graduate schools. Research initiatives and our Davenport
Institute further explore the role of leadership in policy.

If you are a passionate student who is looking to make a difference and be an agent
of change, we encourage you to apply today. We will take a holistic approach at reviewing
your application while considering many factors. Financial assistance options are
available if you qualify.

Located in Malibu, California, 30 miles northwest of Los Angeles, Pepperdine University
provides graduate students access to a robust academic experience, a vibrant city,
and an array of valuable resources.

Constitutional Law Cases: Rehnquist Court

1990 - 1999

U.S. Supreme Court CHURCH OF LUKUMI BABALU AYE v. CITY OF HIALEAH, 508 U.S. 520 (1993) 508 U.S. 520 CHURCH OF LUKUMI BABALU AYE, INC. v. CITY OF HIALEAH CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 91-948

Argued November 4, 1992 Decided June 11, 1993

Petitioner church and its congregants practice the Santeria religion, which employs
animal sacrifice as one of its principal forms of devotion. The animals are killed
by cutting their carotid arteries, and are cooked and eaten following all Santeria
rituals except healing and death rites. After the church leased land in respondent
city and announced plans to establish a house of worship and other facilities there,
the city council held an emergency public session and passed, among other enactments
Resolution 87-66, which noted city residents' "concern" over religious practices inconsistent
with public morals, peace, or safety, and declared the city's "commitment" to prohibiting
such practices; Ordinance 87-40, which incorporates the Florida animal cruelty laws
and broadly punishes "[w]hoever . . . unnecessarily or cruelly . . . kills any animal,"
and has been interpreted to reach killings for religious reasons; Ordinance 87-52,
which defines "sacrifice" as "to unnecessarily kill . . . an animal in a . . . ritual
. . . not for the primary purpose of food consumption," and prohibits the "possess[ion],
sacrifice, or slaughter" of an animal if it is killed in "any type of ritual" and
there is an intent to use it for food, but exempts "any licensed [food] establishment"
if the killing is otherwise permitted by law; Ordinance 87-71, which prohibits the
sacrifice of animals, and defines "sacrifice" in the same manner as Ordinance 87-52;
and Ordinance 87-72 which defines "slaughter" as "the killing of animals for food"
and prohibits slaughter outside of areas zoned for slaughterhouses, but includes an
exemption for "small numbers of hogs and/or cattle" when exempted by state law. Petitioners
filed this suit under 42 U.S.C. 1983, alleging violations of their rights under, inter
alia, the Free Exercise Clause of the First Amendment. Although acknowledging that
the foregoing ordinances are not religiously neutral, the District Court ruled for
the city, concluding, among other things, that compelling governmental interests in
preventing public health risks and cruelty to animals fully justified the absolute
prohibition on ritual sacrifice accomplished by the ordinances, and that an exception
to that prohibition for religious conduct would unduly interfere with fulfillment
of the governmental interest, because any more narrow restrictions would [508 U.S.
520, 521] be unenforceable as a result of the Santeria religion's secret nature. The
Court of Appeals affirmed. Held: The judgment is reversed. 936 F.2d 586, (CA 11 1991) reversed. JUSTICE KENNEDY delivered the opinion of the Court with respect to Parts I, IIA-1,
II-A-3, II-B, III, and IV, concluding that the laws in question were enacted contrary
to free exercise principles, and they are void. Pp. 531-540, 542-547. (a) Under the Free Exercise Clause, a law that burdens religious practice need not
be justified by a compelling governmental interest if it is neutral and of general
applicability. Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S.
872 . However, where such a law is not neutral or not of general application, it must
undergo the most rigorous of scrutiny: it must be justified by a compelling governmental
interest, and must be narrowly tailored to advance that interest. Neutrality and general
applicability are interrelated, and failure to satisfy one requirement is a likely
indication that the other has not been satisfied. Pp. 531-532. (b) The ordinances' texts and operation demonstrate that they are not neutral, but
have as their object the suppression of Santeria's central element, animal sacrifice.
That this religious exercise has been targeted is evidenced by Resolution 87-66's
statements of "concern" and "commitment," and by the use of the words "sacrifice"
and "ritual" in Ordinances 87-40, 87-52, and 87-71. Moreover, the latter ordinances'
various prohibitions, definitions, and exemptions demonstrate that they were "gerrymandered"
with care to proscribe religious killings of animals by Santeria church members but
to exclude almost allother animal killings. They also suppress much more religious
conduct than is necessary to achieve their stated ends. The legitimate governmental
interests in protecting the public health and preventing cruelty to animals could
be addressed by restrictions stopping far short of a flat prohibition of all Santeria
sacrificial practice, such as general regulations on the disposal of organic garbage,
on the care of animals regardless of why they are kept, or on methods of slaughter.
Although Ordinance 87-72 appears to apply to substantial nonreligious conduct and
not to be overbroad, it must also be invalidated because it functions in tandem with
the other ordinances to suppress Santeria religious worship. Pp. 533-540. (c) Each of the ordinances pursues the city's governmental interests only against
conduct motivated by religious belief, and thereby violates the requirement that laws
burdening religious practice must be of general applicability. Ordinances 87-40, 87-52,
and 87-71 are substantially underinclusive with regard to the city's interest in preventing
cruelty [508 U.S. 520, 522] to animals, since they are drafted with care to forbid
few animal killings but those occasioned by religious sacrifice, while many types
of animal deaths or kills for nonreligious reasons are either not prohibited or approved
by express provision. The city's assertions that it is "self-evident" that killing
for food is "important," that the eradication of insects and pests is "obviously justified,"
and that euthanasia of excess animals "makes sense" do not explain why religion alone
must bear the burden of the ordinances. These ordinances are also substantially underinclusive
with regard to the city's public health interests in preventing the disposal of animal
carcasses in open public places and the consumption of uninspected meat, since neither
interest is pursued by respondent with regard to conduct that is not motivated by
religious conviction. Ordinance 87-72 is underinclusive on its face, since it does
not regulate nonreligious slaughter for food in like manner, and respondent has not
explained why the commercial slaughter of "small numbers" of cattle and hogs does
not implicate its professed desire to prevent cruelty to animals and preserve the
public health. Pp. 542-546. (d) The ordinances cannot withstand the strict scrutiny that is required upon their
failure to meet the Smith standard. They are not narrowly tailored to accomplish the
asserted governmental interests. All four are overbroad or underinclusive in substantial
respects because the proffered objectives are not pursued with respect to analogous
nonreligious conduct, and those interests could be achieved by narrower ordinances
that burdened religion to a far lesser degree. Moreover, where, as here, government
restricts only conduct protected by the First Amendment and fails to enact feasible
measures to restrict other conduct producing substantial harm or alleged harm of the
same sort, the governmental interests given in justification of the restriction cannot
be regarded as compelling. Pp. 546-547. KENNEDY, J., delivered the opinion of the Court with respect to Parts I, III, and
IV, in which REHNQUIST, C.J., and WHITE, STEVENS, SCALIA, SOUTER, and THOMAS, JJ.,
joined, the opinion of the Court with respect to Part II-B, in which REHNQUIST, C.J.,
and WHITE, STEVENS, SCALIA, and THOMAS, JJ., joined, the opinion of the Court with
respect to Parts II-A-1 and II-A-3, in which REHNQUIST, C.J., and STEVENS, SCALIA,
and THOMAS, JJ., joined, and an opinion with respect to Part II-A-2, in which STEVENS,
J., joined. SCALIA, J., filed an opinion concurring in part and concurring in the
judgment, in which REHNQUIST, C.J., joined, post p. 557. SOUTER, J., filed an opinion
concurring in part and concurring in the judgment, post p. 559. BLACKMUN, J., filed
an opinion concurring in the judgment, in which O'CONNOR, J., joined, post, p. 577.
[508 U.S. 520, 523] Douglas Laycock argued the cause for petitioners. With him on the briefs were Jeanne
Baker, Steven R. Shapiro, and Jorge A. Duarte. Richard G. Garrett argued the cause for respondent. With him on the brief were Stuart
H. Singer and Steven M. Goldsmith. * [ Footnote * ] Briefs of amici curiae urging reversal were filed for Americans United
for Separation of Church and State et al. by Edward McGlynn Gaffney, Jr., Steven T.
McFarland, Bradley P. Jacob, and Michael W. McConnell; for the Council on Religious
Freedom by Lee Boothby, Robert W. Nixon, Walter E. Carson, and Rolland Truman; and
for the Rutherford Institute by John W. Whitehead. Briefs of amici curiae urging affirmance were filed for the International Society
for Animal Rights et al. by Henry Mark Holzer; for People for the Ethical Treatment
of Animals et al. by Gary L. Francione; and for the Washington Humane Society by E.
Edward Bruce. Briefs of amici curiae were filed for the United States Catholic Conference by Mark
E. Chopko and John A. Liekweg; for the Humane Society of the United States et al.
by Peter Buscemi, Maureen Beyers, Roger A. Kindler, and Eugene Underwood, Jr.; for
the Institute for Animal Rights Law et al. by Henry Mark Holzer; and for the National
Jewish Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps. JUSTICE KENNEDY delivered the opinion of the Court, except as to Part II-A-2.Fn The principle that government may not enact laws that suppress religious belief or
practice is so well understood that few violations are recorded in our opinions. Cf.
McDaniel v. Paty, 435 U.S. 618 (1978); Fowler v. Rhode Island, 345 U.S. 67 (1953).
Concerned that [this [fundamental nonpersecution principle] of the First Amendment
was implicated here,] however, we granted certiorari. 503 U.S. 935 (1992). [508 U.S.
520, 524] Our review confirms that the laws in question were enacted by officials who did not
understand, failed to perceive, or chose to ignore the fact that their official actions
violated the Nation's essential commitment to religious freedom. The challenged laws
had an impermissible object; and in all events, the principle of general applicability
was violated because the secular ends asserted in defense of the laws were pursued
only with respect to conduct motivated by religious beliefs. We invalidate the challenged
enactments, and reverse the judgment of the Court of Appeals. I A This case involves practices of the Santeria religion, which originated in the 19th
century. When hundreds of thousands of members of the Yoruba people were brought as
slaves from western Africa to Cuba, their traditional African religion absorbed significant
elements of Roman Catholicism. The resulting syncretion, or fusion, is Santeria, "the
way of the saints." The Cuban Yoruba express their devotion to spirits, called orishas,
through the iconography of Catholic saints, Catholic symbols are often present at
Santeria rites, and Santeria devotees attend the Catholic sacraments. 723 F.Supp.
1467, 1469-1470 (SD Fla. 1989); 13 Encyclopedia of Religion 66 (M. Eliade ed. 1987);
1 Encyclopedia of the American Religious Experience 183 (C. Lippy & P. Williams eds.
1988). The Santeria faith teaches that every individual has a destiny from God, a destiny
fulfilled with the aid and energy of the orishas. The basis of the Santeria religion
is the nurture of a personal relation with the orishas, and one of the principal forms
of devotion is an animal sacrifice. 13 Encyclopedia of Religion, supra, at 66. The
sacrifice of animals as part of religious rituals has ancient roots. See generally
12 id., at 554-556. Animal sacrifice is mentioned throughout the Old Testament, see
14 Encyclopaedia Judaica 600, 600-605 [508 U.S. 520, 525] (1971), and it played an
important role in the practice of Judaism before destruction of the second Temple
in Jerusalem, see id., at 605-612. In modern Islam, there is an annual sacrifice commemorating
Abraham's sacrifice of a ram in the stead of his son. See C. Glasse, Concise Encyclopedia
of Islam 178 (1989); 7 Encyclopedia of Religion, supra, at 456. According to Santeria teaching, the orishas are powerful, but not immortal. They
depend for survival on the sacrifice. Sacrifices are performed at birth, marriage,
and death rites, for the cure of the sick, for the initiation of new members and priests,
and during an annual celebration. Animals sacrificed in Santeria rituals include chickens,
pigeons, doves, ducks, guinea pigs, goats, sheep, and turtles. The animals are killed
by the cutting of the carotid arteries in the neck. The sacrificed animal is cooked
and eaten, except after healing and death rituals. See 723 F.Supp., at 1471-1472;
13 Encyclopedia of Religion, supra, at 66; M. Gonzalez-Wippler, The Santeria Experience
105 (1982). Santeria adherents faced widespread persecution in Cuba, so the religion and its
rituals were practiced in secret. The open practice of Santeria and its rites remains
infrequent. See 723 F.Supp., at 1470; 13 Encyclopedia of Religion, supra, at 67; M.
Gonzalez-Wippler, Santeria: The Religion 3-4 (1989). The religion was brought to this
Nation most often by exiles from the Cuban revolution. The District Court estimated
that there are at least 50,000 practitioners in South Florida today. See 723 F.Supp.,
at 1470. B Petitioner Church of the Lukumi Babalu Aye, Inc. (Church), is a not-for-profit corporation
organized under Florida law in 1973. The Church and its congregants practice the Santeria
religion. The president of the Church is petitioner Ernesto Pichardo, who is also
the Church's priest and holds the religious title of Italero, the second highest in
the Santeria faith. In April, 1987, the Church leased [508 U.S. 520, 526] land in
the city of Hialeah, Florida, and announced plans to establish a house of worship
as well as a school, cultural center, and museum. Pichardo indicated that the Church's
goal was to bring the practice of the Santeria faith, including its ritual of animal
sacrifice, into the open. The Church began the process of obtaining utility service
and receiving the necessary licensing, inspection, and zoning approvals. Although
the Church's efforts at obtaining the necessary licenses and permits were far from
smooth, see 723 F.Supp., at 1477-1478, it appears that it received all needed approvals
by early August, 1987. The prospect of a Santeria church in their midst was distressing to many members
of the Hialeah community, and the announcement of the plans to open a Santeria church
in Hialeah prompted the city council to hold an emergency public session on June 9,
1987. The resolutions and ordinances passed at that and later meetings are set forth
in the Appendix following this opinion. A summary suffices here, beginning with the enactments passed at the June 9 meeting.
First, the city council adopted Resolution 87-66, which noted the "concern" expressed
by residents of the city "that certain religions may propose to engage in practices
which are inconsistent with public morals, peace or safety," and declared that "[t]he
City reiterates its commitment to a prohibition against any and all acts of any and
all religious groups which are inconsistent with public morals, peace or safety."
Next, the council approved an emergency ordinance, Ordinance 87-40, which incorporated
in full, except as to penalty, Florida's animal cruelty laws. Fla.Stat. ch. 828 (1987).
Among other things, the incorporated state law subjected to criminal punishment "[w]hoever
. . . unnecessarily or cruelly . . . kills any animal." 828.12. The city council desired to undertake further legislative action, but Florida law
prohibited a municipality from enacting legislation relating to animal cruelty that
conflicted with [508 U.S. 520, 527] state law. 828.27(4). To obtain clarification,
Hialeah's city attorney requested an opinion from the attorney general of Florida
as to whether 828.12 prohibited "a religious group from sacrificing an animal in a
religious ritual or practice," and whether the city could enact ordinances "making
religious animal sacrifice unlawful." The attorney general responded in mid-July.
He concluded that the "ritual sacrifice of animals for purposes other than food consumption"
was not a "necessary" killing, and so was prohibited by 828.12. Fla.Op.Atty.Gen. 87-56,
Annual Report of the Atty.Gen. 146, 147, 149 (1988). The attorney general appeared
to define "unnecessary" as "done without any useful motive, in a spirit of wanton
cruelty or for the mere pleasure of destruction without being in any sense beneficial
or useful to the person killing the animal." Id., at 149, n. 11. He advised that religious
animal sacrifice was against state law, so that a city ordinance prohibiting it would
not be in conflict. Id., at 151. The city council responded at first with a hortatory enactment, Resolution 87-90,
that noted its residents' "great concern regarding the possibility of public ritualistic
animal sacrifices" and the state-law prohibition. The resolution declared the city
policy "to oppose the ritual sacrifices of animals" within Hialeah, and announced
that any person or organization practicing animal sacrifice "will be prosecuted." In September, 1987, the city council adopted three substantive ordinances addressing
the issue of religious animal sacrifice. Ordinance 87-52 defined "sacrifice" as "to
unnecessarily kill, torment, torture, or mutilate an animal in a public or private
ritual or ceremony not for the primary purpose of food consumption," and prohibited
owning or possessing an animal "intending to use such animal for food purposes." It
restricted application of this prohibition, however, to any individual or group that
"kills, slaughters or sacrifices animals for any type of ritual, regardless of whether
or not the flesh or blood of the animal is to be consumed." The ordinance [508 U.S.
520, 528] contained an exemption for slaughtering by "licensed establishment[s]" of
animals "specifically raised for food purposes." Declaring, moreover, that the city
council has determined that the sacrificing of animals within the city limits is contrary
to the public health, safety, welfare and morals of the community," the city council
adopted Ordinance 87-71. That ordinance defined sacrifice as had Ordinance 87-52,
and then provided that "[i]t shall be unlawful for any person, persons, corporations
or associations to sacrifice any animal within the corporate limits of the City of
Hialeah, Florida." The final Ordinance, 87-72, defined "slaughter" as "the killing
of animals for food," and prohibited slaughter outside of areas zoned for slaughterhouse
use. The ordinance provided an exemption, however, for the slaughter or processing
for sale of "small numbers of hogs and/or cattle per week in accordance with an exemption
provided by state law." All ordinances and resolutions passed the city council by
unanimous vote. Violations of each of the four ordinances were punishable by fines
not exceeding $500 or imprisonment not exceeding 60 days, or both. Following enactment of these ordinances, the Church and Pichardo filed this action
pursuant to 42 U.S.C. 1983 in the United States District Court for the Southern District
of Florida. Named as defendants were the city of Hialeah and its mayor and members
of its city council in their individual capacities. Alleging violations of petitioners'
rights under, inter alia, the Free Exercise Clause, the complaint sought a declaratory
judgment and injunctive and monetary relief. The District Court granted summary judgment
to the individual defendants, finding that they had absolute immunity for their legislative
acts and that the ordinances and resolutions adopted by the council did not constitute
an official policy of harassment, as alleged by petitioners. 688 F.Supp. 1522 (SD
Fla. 1988). After a 9-day bench trial on the remaining claims, the District Court ruled for the
city, finding no violation of [508 U.S. 520, 529] petitioners' rights under the Free
Exercise Clause. 723 F.Supp. 1467 (SD Fla. 1989). (The court rejected as well petitioners'
other claims, which are not at issue here.) Although acknowledging that "the ordinances
are not religiously neutral," id., at 1476, and that the city's concern about animal
sacrifice was "prompted" by the establishment of the Church in the city, id., at 1479,
the District Court concluded that the purpose of the ordinances was not to exclude
the Church from the city, but to end the practice of animal sacrifice, for whatever
reason practiced, id., at 1479, 1483. The court also found that the ordinances did
not target religious conduct "on their face," though it noted that, in any event,
"specifically regulating [religious] conduct" does not violate the First Amendment
"when [the conduct] is deemed inconsistent with public health and welfare." Id., at
1483-1484. Thus, the court concluded that, at most, the ordinances' effect on petitioners'
religious conduct was "incidental to [their] secular purpose and effect." Id., at
1484. The District Court proceeded to determine whether the governmental interests underlying
the ordinances were compelling and, if so, to balance the "governmental and religious
interests." The court noted that "[t]his "balance depends upon the cost to the government
of altering its activity to allow the religious practice to continue unimpeded versus
the cost to the religious interest imposed by the government activity." Ibid., quoting
Grosz v. City of Miami Beach, 721 F.2d 729, 734 (CA 11 1983), cert. denied, 469 U.S.
827 (1984). The court found four compelling interests. First, the court found that
animal sacrifices present a substantial health risk, both to participants and the
general public. According to the court, animals that are to be sacrificed are often
kept in unsanitary conditions and are uninspected, and animal remains are found in
public places. 723 F.Supp., at 1474-1475, 1485. Second, the court found emotional
injury to children who witness the sacrifice of animals. Id., at 1475-1476, 1485-1486.
Third, the court found compelling [508 U.S. 520, 530] the city's interest in protecting
animals from cruel and unnecessary killing. The court determined that the method of
killing used in Santeria sacrifice was "unreliable and not humane, and that the animals,
before being sacrificed, are often kept in conditions that produce a great deal of
fear and stress in the animal." Id., at 1472-1473, 1486. Fourth, the District Court
found compelling the city's interest in restricting the slaughter or sacrifice of
animals to areas zoned for slaughterhouse use. Id., at 1486. This legal determination
was not accompanied by factual findings. Balancing the competing governmental and religious interests, the District Court
concluded the compelling governmental interests "fully justify the absolute prohibition
on ritual sacrifice" accomplished by the ordinances. Id., at 1487. The court also
concluded that an exception to the sacrifice prohibition for religious conduct would
"`unduly interfere with fulfillment of the governmental interest'" because any more
narrow restrictions - e.g., regulation of disposal of animal carcasses - would be
unenforceable as a result of the secret nature of the Santeria religion. Id., at 1486-1487,
and nn. 57-59. A religious exemption from the city's ordinances, concluded the court,
would defeat the city's compelling interests in enforcing the prohibition. Id., at
1487. The Court of Appeals for the Eleventh Circuit affirmed in a one-paragraph per curiam
opinion. Judgt. order reported at 936 F.2d 586 (1991). Choosing not to rely on the
District Court's recitation of a compelling interest in promoting the welfare of children,
the Court of Appeals stated simply that it concluded the ordinances were consistent
with the Constitution. App. to Pet. for Cert. A2. It declined to address the effect
of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990),
decided after the District Court's opinion, because the District Court "employed an
arguably stricter standard" than that applied in Smith. App. to Pet. for Cert. A2,
n. 1. [508 U.S. 520, 531] II The Free Exercise Clause of the First Amendment, which has been applied to the States
through the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303 (1940),
provides that "Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof. . . ." (Emphasis added.) The city does not
argue that Santeria is not a "religion" within the meaning of the First Amendment.
Nor could it. Although the practice of animal sacrifice may seem abhorrent to some,
"religious beliefs need not be acceptable, logical, consistent, or comprehensible
to others in order to merit First Amendment protection." Thomas v. Review Bd. of Indiana
Employment Security Div., 450 U.S. 707, 714 (1981). Given the historical association
between animal sacrifice and religious worship, see supra, at 2, petitioners' assertion
that animal sacrifice is an integral part of their religion "cannot be deemed bizarre
or incredible." Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829, 834
, n. 2 (1989). Neither the city nor the courts below, moreover, have questioned the
sincerity of petitioners' professed desire to conduct animal sacrifices for religious
reasons. We must consider petitioners' First Amendment claim. In addressing the constitutional protection for free exercise of religion, our cases
establish the general proposition that [a law that is neutral and of general applicability
need not be justified by a compelling governmental interest even if the law has the
incidental effect of burdening a particular religious practice.] Employment Div.,
Dept. of Human Resources of Ore. v. Smith, supra. Neutrality and general applicability
are [interrelated], and, as becomes apparent in this case, failure to satisfy one
requirement is a likely indication that the other has not been satisfied. A law failing
to satisfy these requirements must be justified by a compelling governmental interest,
and must be narrowly tailored to [508 U.S. 520, 532] advance that interest. These
ordinances [fail to satisfy the Smith requirements.] We begin by discussing neutrality. A In our Establishment Clause cases, we have often stated the principle that the First
Amendment forbids an official purpose to disapprove of a particular religion or of
religion in general. See, e.g., Board of Ed. of Westside Community Schools (Dist.
66) v. Mergens, 496 U.S. 226, 248 (1990) (plurality opinion); School Dist. of Grand
Rapids v. Ball, 473 U.S. 373, 389 (1985); Wallace v. Jaffree, 472 U.S. 38, 56 (1985);
Epperson v. Arkansas, 393 U.S. 97, 106 -107 (1968); School Dist. of Abington v. Schempp,
374 U.S. 203, 225 (1963); Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15 -16 (1947).
These cases, however, for the most part, have addressed governmental efforts to benefit
religion or particular religions, and so have dealt with a question different, at
least in its formulation and emphasis, from the issue here. Petitioners allege an
attempt to disfavor their religion because of the religious ceremonies it commands,
and the Free Exercise Clause is dispositive in our analysis. [At a minimum, the protections of the Free Exercise Clause pertain if the law at
issue discriminates against some or all religious beliefs or regulates or prohibits
conduct because it is undertaken for religious reasons.] See, e.g., Braunfeld v. Brown,
366 U.S. 599, 607 (1961) (plurality opinion); Fowler v. Rhode Island, 345 U.S. 67,
69 -70 (1953). Indeed, it was ["historical instances of religious persecution and
intolerance that gave concern to those who drafted the Free Exercise Clause."] Bowen
v. Roy, 476 U.S. 693, 703 (1986) (opinion of Burger, C.J.). See J. Story, Commentaries
on the Constitution of the United States 991-992 (abridged ed. 1833) (reprint 1987);
T. Cooley, Constitutional Limitations 467 (1868) (reprint 1972); McGowan v. Maryland,
366 U.S. 420, 464 , and n. 2 (1961) (opinion of Frankfurter, J.); Douglas v. Jeannette,
319 U.S. 157, 179 (1943) (Jackson, J., concurring in result); [508 U.S. 520, 533]
Davis v. Beason, 133 U.S. 333, 342 (1890). These principles, though not often at issue
in our Free Exercise Clause cases, have played a role in some. In McDaniel v. Paty,
435 U.S. 618 (1978), for example, we invalidated a state law that disqualified members
of the clergy from holding certain public offices, because it "impose[d] special disabilities
on the basis of . . . religious status," Employment Div., Dept. of Human Resources
of Ore. v. Smith, 494 U.S., at 877 . On the same principle, in Fowler v. Rhode Island,
supra, we found that a municipal ordinance was applied in an unconstitutional manner
when interpreted to prohibit preaching in a public park by a Jehovah's Witness, but
to permit preaching during the course of a Catholic mass or Protestant church service.
See also Niemotko v. Maryland, 340 U.S. 268, 272 -273 (1951). Cf. Larson v. Valente,
456 U.S. 228 (1982) (state statute that treated some religious denominations more
favorably than others violated the Establishment Clause). 1 Although a law targeting religious beliefs as such is never permissible, McDaniel
v. Paty, supra, at 626 (plurality opinion); Cantwell v. Connecticut, supra, at 303-304,
if the object of a law is to infringe upon or restrict practices because of their
religious motivation, the law is not neutral, see Employment Div., Dept. of Human
Resources of Oregon v. Smith, supra, at 878-879, and it is invalid unless it is justified
by a compelling interest and is narrowly tailored to advance that interest. There
are, of course, many ways of demonstrating that the object or purpose of a law is
the suppression of religion or religious conduct. To determine the object of a law,
we must begin with its text, for the minimum requirement of neutrality is that a law
not discriminate on its face. A law lacks facial neutrality if it refers to a religious
practice without a secular meaning discernable from the language or context. Petitioners
contend that three of the ordinances fail this test of facial neutrality because they
use the words [508 U.S. 520, 534] "sacrifice" and "ritual," words with strong religious
connotations. Brief for Petitioners 16-17. We agree that these words are consistent
with the claim of facial discrimination, but the argument is not conclusive. The words
"sacrifice" and "ritual" have a religious origin, but current use admits also of secular
meanings. See Webster's Third New International Dictionary 1961, 1996 (1971). See
also 12 Encyclopedia of Religion, at 556 ("[T]he word sacrifice ultimately became
very much a secular term in common usage"). The ordinances, furthermore, define "sacrifice"
in secular terms, without referring to religious practices. We reject the contention advanced by the city, see Brief for Respondent 15, that
our inquiry must end with the text of the laws at issue. Facial neutrality is not
determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond
facial discrimination. The Clause "forbids subtle departures from neutrality," Gillette
v. United States, 401 U.S. 437, 452 (1971), and "covert suppression of particular
religious beliefs," Bowen v. Roy, supra, at 703 (opinion of Burger, C.J.). Official
action that targets religious conduct for distinctive treatment cannot be shielded
by mere compliance with the requirement of facial neutrality. The Free Exercise Clause
protects against governmental hostility which is masked as well as overt. "The Court
must survey meticulously the circumstances of governmental categories to eliminate,
as it were, religious gerrymanders." Walz v. Tax Comm'n of New York City, 397 U.S.
664, 696 (1970) (Harlan, J., concurring). The record in this case compels the conclusion that suppression of the central element
of the Santeria worship service was the object of the ordinances. First, though use
of the words "sacrifice" and "ritual" does not compel a finding of improper targeting
of the Santeria religion, the choice of these words is support for our conclusion.
There are further respects in which the text of the city council's enactments discloses
the improper attempt to target Santeria. [508 U.S. 520, 535] Resolution 87-66, adopted
June 9, 1987, recited that "residents and citizens of the City of Hialeah have expressed
their concern that certain religions may propose to engage in practices which are
inconsistent with public morals, peace or safety," and "reiterate[d]" the city's commitment
to prohibit "any and all [such] acts of any and all religious groups." No one suggests,
and, on this record, it cannot be maintained, that city officials had in mind a religion
other than Santeria. It becomes evident that these ordinances target Santeria sacrifice when the ordinances'
operation is considered. Apart from the text, the effect of a law in its real operation
is strong evidence of its object. To be sure, adverse impact will not always lead
to a finding of impermissible targeting. For example, a social harm may have been
a legitimate concern of government for reasons quite apart from discrimination. McGowan
v. Maryland, 366 U.S., at 442 . See, e.g., Reynolds v. United States, 98 U.S. 145
(1879); Davis v. Beason, 133 U.S. 333 (1890). See also Ely, Legislative and Administrative
Motivation in Constitutional Law, 79 Yale L.J. 1205, 1319 (1970). The subject at hand
does implicate, of course, multiple concerns unrelated to religious animosity, for
example, the suffering or mistreatment visited upon the sacrificed animals and health
hazards from improper disposal. But the ordinances, when considered together, disclose
an object remote from these legitimate concerns. The design of these laws accomplishes,
instead, a "religious gerrymander," Walz v. Tax Comm'n of New York City, supra, at
696 (Harlan, J., concurring), an impermissible attempt to target petitioners and their
religious practices. It is a necessary conclusion that almost the only conduct subject to Ordinances 87-40,
87-52, and 87-71 is the religious exercise of Santeria church members. The texts show
that they were drafted in tandem to achieve this result. We begin with Ordinance 87-71.
It prohibits the sacrifice of animals, but defines sacrifice as "to unnecessarily
kill . . . an animal in a public or private ritual or ceremony not for the [508 U.S.
520, 536] primary purpose of food consumption." The definition excludes almost all
killings of animals except for religious sacrifice, and the primary purpose requirement
narrows the proscribed category even further, in particular by exempting kosher slaughter,
see 723 F.Supp., at 1480. We need not discuss whether this differential treatment
of two religions is, itself, an independent constitutional violation. Cf. Larson v.
Valente, 456 U.S., at 244 -246. It suffices to recite this feature of the law as support
for our conclusion that Santeria alone was the exclusive legislative concern. The
net result of the gerrymander is that few, if any, killings of animals are prohibited
other than Santeria sacrifice, which is proscribed because it occurs during a ritual
or ceremony and its primary purpose is to make an offering to the orishas, not food
consumption. Indeed, careful drafting ensured that, although Santeria sacrifice is
prohibited, killings that are no more necessary or humane in almost all other circumstances
are unpunished. Operating in similar fashion is Ordinance 87-52, which prohibits the "possess[ion],
sacrifice, or slaughter" of an animal with the "inten[t] to use such animal for food
purposes." This prohibition, extending to the keeping of an animal, as well as the
killing itself, applies if the animal is killed in "any type of ritual" and there
is an intent to use the animal for food, whether or not it is in fact consumed for
food. The ordinance exempts, however, "any licensed [food] establishment" with regard
to "any animals which are specifically raised for food purposes," if the activity
is permitted by zoning and other laws. This exception, too, seems intended to cover
Kosher slaughter. Again, the burden of the ordinance, in practical terms, falls on
Santeria adherents, but almost no others: if the killing is - unlike most Santeria
sacrifices - unaccompanied by the intent to use the animal for food, then it is not
prohibited by Ordinance 87-52; if the killing is specifically for food, but does not
occur during the course of "any type of ritual," it again falls outside the prohibition;
and [508 U.S. 520, 537] if the killing is for food and occurs during the course of
a ritual, it is still exempted if it occurs in a properly zoned and licensed establishment
and involves animals "specifically raised for food purposes." A pattern of exemptions
parallels the pattern of narrow prohibitions. Each contributes to the gerrymander. Ordinance 87-40 incorporates the Florida animal cruelty statute, Fla.Stat. 828.12
(1987). Its prohibition is broad on its face, punishing "[w]hoever . . . unnecessarily
. . . kills any animal." The city claims that this ordinance is the epitome of a neutral
prohibition. Brief for Respondent 13-14. The problem, however, is the interpretation
given to the ordinance by respondent and the Florida attorney general. Killings for
religious reasons are deemed unnecessary, whereas most other killings fall outside
the prohibition. The city, on what seems to be a per se basis, deems hunting, slaughter
of animals for food, eradication of insects and pests, and euthanasia as necessary.
See id., at 22. There is no indication in the record that respondent has concluded
that hunting or fishing for sport is unnecessary. Indeed, one of the few reported
Florida cases decided under 828.12 concludes that the use of live rabbits to train
greyhounds is not unnecessary. See Kiper v. State, 310 So.2d 42 (Fla. App.), cert.
denied, 328 So.2d 845 (Fla. 1975). Further, because it requires an evaluation of the
particular justification for the killing, this ordinance represents a system of "individualized
governmental assessment of the reasons for the relevant conduct," Employment Div.,
Dept. of Human Resources of Oregon v. Smith, 494 U.S., at 884 . As we noted in Smith,
in circumstances in which individualized exemptions from a general requirement are
available, the government "may not refuse to extend that system to cases of `religious
hardship' without compelling reason." ibid. quoting Bowen v. Roy, 476 U.S., at 708
(opinion of Burger, C.J.). Respondent's application of the ordinance's test of necessity
devalues religious reasons for killing by judging them to be of lesser import than
nonreligious [508 U.S. 520, 538] reasons. Thus, religious practice is being singled
out for discriminatory treatment. Bowen v. Roy, 476 U.S., at 722 , and n. 17 (STEVENS,
J., concurring in part and concurring in result), id., at 708 (opinion of Burger,
C.J.); United States v. Lee, 455 U.S. 252, 264 , n. 3 (1982) (STEVENS, J., concurring
in judgment). We also find significant evidence of the ordinances' improper targeting of Santeria
sacrifice in the fact that they proscribe more religious conduct than is necessary
to achieve their stated ends. It is not unreasonable to infer, at least when there
are no persuasive indications to the contrary, that a law which visits "gratuitous
restrictions" on religious conduct, McGowan v. Maryland, 366 U.S., at 520 (opinion
of Frankfurter, J.), seeks not to effectuate the stated governmental interests, but
to suppress the conduct because of its religious motivation. The [legitimate governmental interests in protecting the public health and preventing
cruelty to animals could be addressed by restrictions stopping far short of a flat
prohibition of all Santeria sacrificial practice.] * If improper disposal, not the
sacrifice itself, is the harm to be prevented, the city could have imposed a general
regulation on the disposal of organic garbage. It did not do so. Indeed, counsel for
the city conceded at oral argument that, under the ordinances, Santeria sacrifices
would be illegal even if they occurred in licensed, inspected, and zoned slaughterhouses.
Tr. of Oral Arg. 45. See also id., at 42, 48. Thus, these broad ordinances prohibit
Santeria sacrifice even when it does not threaten the city's [508 U.S. 520, 539] interest
in the public health. The District Court accepted the argument that narrower regulation
would be unenforceable because of the secrecy in the Santeria rituals and the lack
of any central religious authority to require compliance with secular disposal regulations.
See 723 F.Supp., at 1486-1487, and nn. 58-59. It is difficult to understand, however,
how a prohibition of the sacrifices themselves, which occur in private, is enforceable
if a ban on improper disposal, which occurs in public, is not. The neutrality of a
law is suspect if First Amendment freedoms are curtailed to prevent isolated collateral
harms not themselves prohibited by direct regulation. See, e.g., Schneider v. State,
308 U.S. 147, 162 (1939). Under similar analysis, narrower regulation would achieve the city's interest in
preventing cruelty to animals. With regard to the city's interest in ensuring the
adequate care of animals, regulation of conditions and treatment, regardless of why
an animal is kept, is the logical response to the city's concern, not a prohibition
on possession for the purpose of sacrifice. The same is true for the city's interest
in prohibiting cruel methods of killing. Under federal and Florida law and Ordinance
87-40, which incorporates Florida law in this regard, killing an animal by the "simultaneous
and instantaneous severance of the carotid arteries with a sharp instrument" - the
method used in kosher slaughter - is approved as humane. See 7 U.S.C. 1902(b); Fla.Stat.
828.23(7)(b) (1991); Ordinance 87-40, 1. The District Court found that, though Santeria
sacrifice also results in severance of the carotid arteries, the method used during
sacrifice is less reliable, and therefore not humane. See 723 F.Supp., at 1472-1473.
If the city has a real concern that other methods are less humane, however, the subject
of the regulation should be the method of slaughter itself, not a religious classification
that is said to bear some general relation to it. Ordinance 87-72 - unlike the three other ordinances - does appear to apply to substantial
nonreligious conduct, and [508 U.S. 520, 540] not to be overbroad. For our purposes
here, however, the four substantive ordinances may be treated as a group for neutrality
purposes. Ordinance 87-72 was passed the same day as Ordinance 87-71, and was enacted,
as were the three others, in direct response to the opening of the Church. It would
be implausible to suggest that the three other ordinances, but not Ordinance 87-72,
had as their object the suppression of religion. We need not decide whether the Ordinance
87-72 could survive constitutional scrutiny if it existed separately; it must be invalidated
because it functions, with the rest of the enactments in question, to suppress Santeria
religious worship. 2 In determining if the object of a law is a neutral one under the Free Exercise Clause,
we can also find guidance in our equal protection cases. As Justice Harlan noted in
the related context of the Establishment Clause, "[n]eutrality in its application
requires an equal protection mode of analysis." Walz v. Tax Comm'n of New York City,
397 U.S., at 696 (concurring opinion). Here, as in equal protection cases, we may
determine the city council's object from both direct and circumstantial evidence.
Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977).
Relevant evidence includes, among other things, the historical background of the decision
under challenge, the specific series of events leading to the enactment or official
policy in question, and the legislative or administrative history, including contemporaneous
statements made by members of the decisionmaking body. Id., at 267-268. These objective
factors bear on the question of discriminatory object. Personnel Administrator of
Mass. v. Feeney, 442 U.S. 256, 279 , n. 24 (1979). That the ordinances were enacted "`because of,' not merely `in spite of,'" their
suppression of Santeria religious practice, id., at 279, is revealed by the events
preceding enactment thier. Although respondent claimed at oral argument [508 U.S.
520, 541] that it had experienced significant problems resulting from the sacrifice
of animals within the city before the announced opening of the Church, Tr. of Oral
Arg. 27, 46, the city council made no attempt to address the supposed problem before
its meeting in June, 1987, just weeks after the Church announced plans to open. The
minutes and taped excerpts of the June 9 session, both of which are in the record,
evidence significant hostility exhibited by residents, members of the city council,
and other city officials toward the Santeria religion and its practice of animal sacrifice.
The public crowd that attended the June 9 meetings interrupted statements by council
members critical of Santeria with cheers and the brief comments of Pichardo with taunts.
When Councilman Martinez, a supporter of the ordinances, stated that, in prerevolution
Cuba, "people were put in jail for practicing this religion," the audience applauded.
Taped excerpts of Hialeah City Council Meeting, June 9, 1987. Other statements by members of the city council were in a similar vein. For example,
Councilman Martinez, after noting his belief that Santeria was outlawed in Cuba, questioned:
"If we could not practice this [religion] in our homeland [Cuba], why bring it to
this country?" Councilman Cardoso said that Santeria devotees at the Church "are in
violation of everything this country stands for." Councilman Mejides indicated that
he was "totally against the sacrificing of animals," and distinguished kosher slaughter
because it had a "real purpose." The "Bible says we are allowed to sacrifice an animal
for consumption," he continued, "but for any other purposes, I don't believe that
the Bible allows that." The president of the city council, Councilman Echevarria,
asked: "What can we do to prevent the Church from opening?" Various Hialeah city officials made comparable comments. The chaplain of the Hialeah
Police Department told the city council that Santeria was a sin, "foolishness," "an
abomination to the Lord," and the worship of "demons." He advised [508 U.S. 520, 542]
the city council: "We need to be helping people and sharing with them the truth that
is found in Jesus Christ." He concluded: "I would exhort you . . . not to permit this
Church to exist." The city attorney commented that Resolution 87-66 indicated: "This
community will not tolerate religious practices which are abhorrent to its citizens.
. . ." ibid. Similar comments were made by the deputy city attorney. This history
discloses the object of the ordinances to target animal sacrifice by Santeria worshippers
because of its religious motivation. 3 In sum, the neutrality inquiry leads to one conclusion: the ordinances had as their
object the suppression of religion. The pattern we have recited discloses animosity
to Santeria adherents and their religious practices; the ordinances, by their own
terms, target this religious exercise; the texts of the ordinances were gerrymandered
with care to proscribe religious killings of animals but to exclude almost all secular
killings; and the ordinances suppress much more religious conduct than is necessary
in order to achieve the legitimate ends asserted in their defense. These ordinances
are not neutral, and the court below committed clear error in failing to reach this
conclusion. B We turn next to a second requirement of the Free Exercise Clause, the rule that laws
burdening religious practice must be of general applicability. Employment Div., Dept.
of Human Resources of Ore. v. Smith, 494 U.S., at 879 -881. All laws are selective
to some extent, but categories of selection are of paramount concern when a law has
the incidental effect of burdening religious practice. The Free Exercise Clause "protect[s]
religious observers against unequal treatment," Hobbie v. Unemployment Appeals Comm'n
of Fla., 480 U.S. 136, 148 (1987) (STEVENS, J., concurring in judgment), and inequality
results when a legislature decides that [508 U.S. 520, 543] the governmental interests
it seeks to advance are worthy of being pursued only against conduct with a religious
motivation. The principle that government, in pursuit of legitimate interests, cannot in a [selective
manner impose burdens only on conduct motivated by religious belief] is essential
to the protection of the rights guaranteed by the Free Exercise Clause. The principle
underlying the general applicability requirement has parallels in our First Amendment
jurisprudence. See, e.g., Cohen v. Cowles Media Co., 501 U.S. 66 669-670; (1991);
University of Pennsylvania v. EEOC, 493 U.S. 182, 201 (1990); Minneapolis Star & Tribune
Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 585 (1983); Larson v. Valente, 456
U.S., at 245 -246; Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial
Presbyterian Church, 393 U.S. 440, 449 (1969). In this case, we [need not define with
precision the standard used to evaluate whether a prohibition is of general application,
for these ordinances fall well below the minimum standard necessary to protect First
Amendment rights.] Respondent claims that Ordinances 87-40, 87-52, and 87-71 advance two interests:
protecting the public health and preventing cruelty to animals. The ordinances are
underinclusive for those ends. They fail to prohibit nonreligious conduct that endangers
these interests in a similar or greater degree than Santeria sacrifice does. The underinclusion
is substantial, not inconsequential. [Despite the city's proffered interest in preventing
cruelty to animals, the ordinances are drafted with care to forbid few killings but
those occasioned by religious sacrifice.] Many types of animal deaths or kills for
nonreligious reasons are either not prohibited or approved by express provision. For
example, fishing - which occurs in Hialeah, see A. Khedouri & F. Khedouri, South Florida
Inside Out 57 (1991) - is legal. Extermination of mice and rats within a home is also
permitted. Florida law incorporated by Ordinance 87-40 [508 U.S. 520, 544] sanctions
euthanasia of "stray, neglected, abandoned, or unwanted animals," Fla.Stat. 828.058
(1987); destruction of animals judicially removed from their owners "for humanitarian
reasons" or when the animal "is of no commercial value," 828.073(4)(c)(2); the infliction
of pain or suffering "in the interest of medical science," 828.02; the placing of
poison in one's yard or enclosure, 828.08; and the use of a live animal "to pursue
or take wildlife or to participate in any hunting," 828.122(6)(b), and "to hunt wild
hogs," 828.122(6)(e). The city concedes that "neither the State of Florida nor the City has enacted a generally
applicable ban on the killing of animals." Brief for Respondent 21. It asserts, however,
that animal sacrifice is "different" from the animal killings that are permitted by
law. Ibid. According to the city, it is "self-evident" that killing animals for food
is "important"; the eradication of insects and pests is "obviously justified"; and
the euthanasia of excess animals "makes sense." Id., at 22. These ipse dixits do not
explain why religion alone must bear the burden of the ordinances, when many of these
secular killings fall within the city's interest in preventing the cruel treatment
of animals. The [ordinances are also underinclusive with regard to the city's interest in public
health], which is threatened by the disposal of animal carcasses in open public places
and the consumption of uninspected meat, see Brief for Respondent 32, citing 723 F.Supp.,
at 1474-1475, 1485. Neither interest is pursued by respondent with regard to conduct
that is not motivated by religious conviction. The health risks posed by the improper
disposal of animal carcasses are the same whether Santeria sacrifice or some nonreligious
killing preceded it. The city does not, however, prohibit hunters from bringing their
kill to their houses, nor does it regulate disposal after their activity. Despite
substantial testimony at trial that the same public health hazards result from improper
disposal of garbage by restaurants, see 11 Record 566, [508 U.S. 520, 545] 590-591,
restaurants are outside the scope of the ordinances. Improper disposal is a general
problem that causes substantial health risks, 723 F.Supp., at 1485, but which respondent
addresses only when it results from religious exercise. The ordinances are underinclusive as well with regard to the health risk posed by
consumption of uninspected meat. Under the city's ordinances, hunters may eat their
kill and fishermen may eat their catch without undergoing governmental inspection.
Likewise, state law requires inspection of meat that is sold, but exempts meat from
animals raised for the use of the owner and "members of his household and nonpaying
guests and employees." Fla.Stat. 585.88(1)(a) (1991). The asserted interest in inspected
meat is not pursued in contexts similar to that of religious animal sacrifice. Ordinance 87-72, which prohibits the slaughter of animals outside of areas zoned
for slaughterhouses, is underinclusive on its face. The ordinance includes an exemption
for "any person, group, or organization" that "slaughters or processes for sale, small
numbers of hogs and/or cattle per week in accordance with an exemption provided by
state law." See Fla.Stat. 828.24(3) (1991). Respondent has not explained why commercial
operations that slaughter "small numbers" of hogs and cattle do not implicate its
professed desire to prevent cruelty to animals and preserve the public health. Although
the city has classified Santeria sacrifice as slaughter, subjecting it to this ordinance,
it does not regulate other killings for food in like manner. We conclude, in sum, that each of Hialeah's ordinances pursues the city's governmental
interests only against conduct motivated by religious belief. The ordinances "ha[ve]
every appearance of a prohibition that society is prepared to impose upon [Santeria
worshippers], but not upon itself." Florida Star v. B.J.F., 491 U.S. 524, 542 (1989)
(SCALIA, J., concurring in part and concurring in [508 U.S. 520, 546] judgment). This
precise evil is what the requirement of general applicability is designed to prevent. III [A law burdening religious practice that is not neutral or not of general application
must undergo the most rigorous of scrutiny.] To satisfy the commands of the First
Amendment, a law restrictive of religious practice must advance "`interests of the
highest order,'" and must be narrowly tailored in pursuit of those interests. McDaniel
v. Paty, 435 U.S., at 628 , quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).
The compelling interest standard that we apply once a law fails to meet the Smith
requirements is not "water[ed] . . . down" but "really means what it says." Employment
Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S., at 888 . A law that targets
religious conduct for distinctive treatment or advances legitimate governmental interests
only against conduct with a religious motivation will survive strict scrutiny only
in rare cases. It follows from what we have already said that these ordinances cannot
withstand this scrutiny. First, even were the governmental interests compelling, the ordinances are not drawn
in narrow terms to accomplish those interests. As we have discussed, see supra, at
538-540, 543-546, all four ordinances are overbroad or underinclusive in substantial
respects. The proffered objectives are not pursued with respect to analogous nonreligious
conduct, and those interests could be achieved by narrower ordinances that burdened
religion to a far lesser degree. The absence of narrow tailoring suffices to establish
the invalidity of the ordinances. See Arkansas Writers' Project, Inc. v. Ragland,
481 U.S. 221, 232 (1987). Respondent has not demonstrated, moreover, that, in the context of these ordinances,
its governmental interests are compelling. Where government restricts only conduct
protected by the First Amendment and fails to enact feasible [508 U.S. 520, 547] measures
to restrict other conduct producing substantial harm or alleged harm of the same sort,
the interest given in justification of the restriction is not compelling. It is established
in our strict scrutiny jurisprudence that "a law cannot be regarded as protecting
an interest "of the highest order" . . . when it leaves appreciable damage to that
supposedly vital interest unprohibited." Florida Star v. B.J.F., supra, at 541-542
(SCALIA, J., concurring in part and concurring in judgment) (citation omitted). See
Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 119
-120 (1991). Cf. Florida Star v. B.J.F., supra, at 540-541; Smith v. Daily Mail Publishing
Co., 443 U.S. 97, 104 -105 (1979); id., at 110 (REHNQUIST, J., concurring in judgment).
As we show above, see supra, at 543-546, the ordinances are underinclusive to a substantial
extent with respect to each of the interests that respondent has asserted, and it
is only conduct motivated by religious conviction that bears the weight of the governmental
restrictions. There can be no serious claim that those interests justify the ordinances. IV The Free Exercise Clause commits government itself to religious tolerance, and upon
even slight suspicion that proposals for state intervention stem from animosity to
religion or distrust of its practices, all officials must pause to remember their
own high duty to the Constitution and to the rights it secures. Those in office must
be resolute in resisting importunate demands and must ensure that the sole reasons
for imposing the burdens of law and regulation are secular. Legislators may not devise
mechanisms, overt or disguised, designed to persecute or oppress a religion or its
practices. The laws here in question were enacted contrary to these constitutional
principles, and they are void. Reversed. Fn [508 U.S. 520, 523] THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE THOMAS join
all but Part II-A-2 of this opinion. JUSTICE WHITE joins all but Part II-A of this
opinion. JUSTICE SOUTER joins only Parts 1, III, and IV of this opinion. [508 U.S.
520, 548] APPENDIX TO OPINION OF THE COURT City of Hialeah, Florida, Resolution No. 87-66, adopted June 9, 1987, provides: "WHEREAS, residents and citizens of the City of Hialeah have expressed their concern
that certain religions may propose to engage in practices which are inconsistent with
public morals, peace or safety, and "WHEREAS, the Florida Constitution, Article I, Declaration of Rights, Section 3,
Religious Freedom, specifically states that religious freedom shall not justify practices
inconsistent with public morals, peace or safety. "NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH,
FLORIDA, that: "1. The City reiterates its commitment to a prohibition against any and all acts
of any and all religious groups which are inconsistent with public morals, peace or
safety. City of Hialeah, Florida, Ordinance No. 87-40, adopted June 9, 1987, provides: "WHEREAS, the citizens of the City of Hialeah, Florida, have expressed great concern
over the potential for animal sacrifices being conducted in the City of Hialeah; and "WHEREAS, Section 828.27, Florida Statutes, provides that `nothing contained in this
section shall prevent any county or municipality from enacting any ordinance relating
to animal control or cruelty to animals which is identical to the provisions of this
Chapter . . . except as to penalty.' "NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH,
FLORIDA, that: [508 U.S. 520, 549] "Section 1. The Mayor and City Council of the City of Hialeah, Florida, hereby adopt
Florida Statute, Chapter 828 - "Cruelty to Animals" (copy attached hereto and made
a part hereof), in its entirety (relating to animal control or cruelty to animals),
except as to penalty. "Section 2. Repeal of Ordinances in Conflict. "All ordinances or parts of ordinances in conflict herewith are hereby repealed to
the extent of such conflict. "Section 3. Penalties. "Any person, firm or corporation convicted of violating the provisions of this ordinance
shall be punished by a fine, not exceeding $500.00, or by a jail sentence, not exceeding
sixty (60) days, or both, in the discretion of the Court. "Section 4. Inclusion in Code. "The provisions of this Ordinance shall be included and incorporated in the Code
of the City of Hialeah, as an addition or amendment thereto, and the sections of this
Ordinance shall be renumbered to conform to the uniform numbering system of the Code. "Section 5. Severability Clause. "If any phrase, clause, sentence, paragraph or section of this Ordinance shall be
declared invalid or unconstitutional by the judge or decree of a court of competent
jurisdiction, such invalidity or unconstitutionality shall not affect any of the remaining
phrases, clauses, sentences, paragraphs or sections of this ordinance. "Section 6. Effective Date. "This Ordinance shall become effective when passed by the City Council of the City
of Hialeah and signed by the Mayor of the City of Hialeah." City of Hialeah Resolution No. 87-90, adopted August 11, 1987, provides: "WHEREAS, the residents and citizens of the City of Hialeah, Florida, have expressed
great concern regarding [508 U.S. 520, 550] the possibility of public ritualistic
animal sacrifices in the City of Hialeah, Florida; and "WHEREAS, the City of Hialeah, Florida, has received an opinion from the Attorney
General of the State of Florida concluding that public ritualistic animal sacrifices
is [sic] a violation of the Florida State Statute on Cruelty to Animals; and "WHEREAS, the Attorney General further held that the sacrificial killing of animals
other than for the primary purpose of food consumption is prohibited under state law;
and "WHEREAS, the City of Hialeah, Florida, has enacted an ordinance mirroring state
law prohibiting cruelty to animals. "NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH,
FLORIDA, that: "Section 1. It is the policy of the Mayor and City Council of the City of Hialeah,
Florida, to oppose the ritual sacrifices of animals within the City of Hialeah, FLorida
[sic]. Any individual or organization that seeks to practice animal sacrifice in violation
of state and local law will be prosecuted." City of Hialeah, Florida, Ordinance No. 87-52, adopted September 8, 1987, provides: "WHEREAS, the residents and citizens of the City of Hialeah, Florida, have expressed
great concern regarding the possibility of public ritualistic animal sacrifices within
the City of Hialeah, Florida; and "WHEREAS, the City of Hialeah, Florida, has received an opinion from the Attorney
General of the State of Florida, concluding that public ritualistic animal sacrifice,
other than for the primary purpose of food consumption, is a violation of state law;
and [508 U.S. 520, 551] "WHEREAS, the City of Hialeah, Florida, has enacted an ordinance (Ordinance No. 87-40),
mirroring the state law prohibiting cruelty to animals. "WHEREAS, the City of Hialeah, Florida, now wishes to specifically prohibit the possession
of animals for slaughter or sacrifice within the City of Hialeah, Florida. "NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH,
FLORIDA, that: "Section 1. Chapter 6 of the Code of Ordinances of the City of Hialeah, Florida,
is hereby amended by adding thereto two (2) new Sections 6-8 "Definitions" and 6-9
"Prohibition Against Possession Of Animals For Slaughter Or Sacrifice," which is to
read as follows: "Section 6-8. Definitions "1. Animal - any living dumb creature. "2. Sacrifice - to unnecessarily kill, torment, torture, or mutilate an animal in
a public or private ritual or ceremony not for the primary purpose of food consumption. "3. Slaughter - the killing of animals for food. "Section 6-9. Prohibition Against Possession of Animals for Slaughter Or Sacrifice. "1. No person shall own, keep or otherwise possess, sacrifice, or slaughter any sheep,
goat, pig, cow or the young of such species, poultry, rabbit, dog, cat, or any other
animal, intending to use such animal for food purposes. "2. This section is applicable to any group or individual that kills, slaughters
or sacrifices animals for any type of ritual, regardless of whether or not the flesh
or blood of the animal is to be consumed. "3. Nothing in this ordinance is to be interpreted as prohibiting any licensed establishment
from slaughtering for food purposes any animals which are specifically [508 U.S. 520,
552] raised for food purposes where such activity is properly zoned and/or permitted
under state and local law and under rules promulgated by the Florida Department of
Agriculture. "Section 2. Repeal of Ordinance in Conflict. "All ordinances or parts of ordinances in conflict herewith are hereby repealed to
the extent of such conflict. "Section 3. Penalties. "Any person, firm or corporation convicted of violating the provisions of this ordinance
shall be punished by a fine, not exceeding $500.00, or by a jail sentence, not exceeding
sixty (60) days, or both, in the discretion of the Court. "Section 4. Inclusion in Code. "The provisions of this Ordinance shall be included and incorporated in the Code
of the City of Hialeah, as an addition or amendment thereto, and the sections of this
Ordinance shall be renumbered to conform to the uniform numbering system of the Code. "Section 5. Severability Clause. "If any phrase, clause, sentence, paragraph or section of this Ordinance shall be
declared invalid or unconstitutional by the judgement or decree of a court of competent
jurisdiction, such invalidity or unconstitutionality shall not effect any of the remaining
phrases, clauses, sentences, paragraphs or sections of this ordinance. "Section 6. Effective Date. "This Ordinance shall become effective when passed by the City Council of the City
of Hialeah and signed by the Mayor of the City of Hialeah." City of Hialeah, Florida, Ordinance No. 87-71, adopted September 22, 1987, provides: "WHEREAS, the City Council of the City of Hialeah, Florida, has determined that the
sacrificing of animals [508 U.S. 520, 553] within the city limits is contrary to the
public health, safety, welfare and morals of the community; and "WHEREAS, the City Council of the City of Hialeah, Florida, desires to have qualified
societies or corporations organized under the laws of the State of Florida, to be
authorized to investigate and prosecute any violation(s) of the ordinance herein after
set forth, and for the registration of the agents of said societies. "NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH,
FLORIDA, that: "Section 1. For the purpose of this ordinance, the word sacrifice shall mean: to
unnecessarily kill, torment, torture, or mutilate an animal in a public or private
ritual or ceremony not for the primary purpose of food consumption. "Section 2. For the purpose of this ordinance, the word animal shall mean: any living
dumb creature. "Section 3. It shall be unlawful for any person, persons, corporations or associations
to sacrifice any animal within the corporate limits of the City of Hialeah, Florida. "Section 4. All societies or associations for the prevention of cruelty to animals
organized under the laws of the State of Florida, seeking to register with the City
of Hialeah for purposes of investigating and assisting in the prosecution of violations
and provisions [sic] of this Ordinance, shall apply to the City Council for authorization
to so register and shall be registered with the Office of the Mayor of the City of
Hialeah, Florida, following approval by the City Council at a public hearing in accordance
with rules and regulations (i.e., criteria) established by the City Council by resolution,
and shall thereafter, be empowered to assist in the prosecution of any violation of
this Ordinance. [508 U.S. 520, 554] "Section 5. Any society or association for the prevention of cruelty to animals registered
with the Mayor of the City of Hialeah, Florida, in accordance with the provisions
of Section 4 hereinabove, may appoint agents for the purposes of investigating and
assisting in the prosecution of violations and provisions [sic] of this Ordinance,
or any other laws of the City of Hialeah, Florida, for the purpose of protecting animals
and preventing any act prohibited hereunder. "Section 6. Repeal of Ordinances in Conflict. "All ordinances or parts of ordinances in conflict herewith are hereby repealed to
the extent of such conflict. "Section 7. Penalties. "Any person, firm or corporation convicted of violating the provisions of this ordinance
shall be punished by a fine, not exceeding $500.00, or by a jail sentence, not exceeding
sixty (60) days, or both, in the discretion of the Court. "Section 8. Inclusion in Code. "The provisions of this Ordinance shall be included and incorporated in the Code
of the City of Hialeah, as an addition or amendment thereto, and the sections of this
Ordinance shall be renumbered to conform to the uniform numbering system of the Code. "Section 9. Severability Clause. "If any phrase, clause, sentence, paragraph or section of this Ordinance shall be
declared invalid or unconstitutional by the judgment or decree of a court of competent
jurisdiction, such invalidity or unconstitutionality shall not effect any of the remaining
phrases, clauses, sentences, paragraphs or sections of this Ordinance. "Section 10. Effective Date. "This Ordinance shall become effective when passed by the City Council of the City
of Hialeah and signed by the Mayor of the City of Hialeah." [508 U.S. 520, 555] City of Hialeah, Florida, Ordinance No. 87-72, adopted September 22, 1987, provides: "WHEREAS, the City Council of the City of Hialeah, Florida, has determined that the
slaughtering of animals on the premises other than those properly zoned as a slaughter
house, is contrary to the public health, safety and welfare of the citizens of Hialeah,
Florida. "NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH,
FLORIDA, that: "Section 1. For the purpose of this Ordinance, the word slaughter shall mean: the
killing of animals for food. "Section 2. For the purpose of this Ordinance, the word animal shall mean: any living
dumb creature. "Section 3. It shall be unlawful for any person, persons, corporations or associations
to slaughter any animal on any premises in the City of Hialeah, Florida, except those
properly zoned as a slaughter house, and meeting all the health, safety and sanitation
codes prescribed by the City for the operation of a slaughter house. "Section 4. All societies or associations for the prevention of cruelty to animals
organized under the laws of the State of Florida, seeking to register with the City
of Hialeah for purposes of investigating and assisting in the prosecution of violations
and provisions [sic] of this Ordinance, shall apply to the City Council for authorization
to so register and shall be registered with the Office of the Mayor of the City of
Hialeah, Florida, following approval by the City Council at a public hearing in accordance
with rules and regulations (i.e., criteria) established by the City Council by resolution,
and shall thereafter, be empowered to assist in the prosecution of any violations
of this Ordinance. [508 U.S. 520, 556] "Section 5. Any society or association for the prevention of cruelty to animals registered
with the Mayor of the City of Hialeah, Florida, in accordance with the provisions
of Section 4 hereinabove, may appoint agents for the purposes of investigating and
assisting in the prosecution of violations and provisions [sic] of this Ordinance,
or any other laws of the City of Hialeah, Florida, for the purpose of protecting animals
and preventing any act prohibited hereunder. "Section 6. This Ordinance shall not apply to any person, group, or organization
that slaughters, or processes for sale, small numbers of hogs and/or cattle per week
in accordance with an exemption provided by state law. "Section 7. Repeal of Ordinances in Conflict. "All ordinances or parts of ordinances in conflict herewith are hereby repealed to
the extent of such conflict. "Section 8. Penalties. "Any person, firm or corporation convicted of violating the provisions of this ordinance
shall be punished by a fine, not exceeding $500.00, or by a jail sentence, not exceeding
sixty (60) days, or both, in the discretion of the Court. "Section 9. Inclusion in Code. "The provisions of this Ordinance shall be included and incorporated in the Code
of the City of Hialeah, as an addition or amendment thereto, and the sections of this
Ordinance shall be renumbered to conform to the uniform numbering system of the Code. "Section 10. Severability Clause. "If any phrase, clause, sentence, paragraph or section of this Ordinance shall be
declared invalid or unconstitutional by the judgment or decree of a court of competent
jurisdiction, such invalidity or unconstitutionality shall not effect any of the remaining
phrases, clauses, sentences, paragraphs or sections of this ordinance. [508 U.S. 520,
557] "Section 11. Effective Date. "This Ordinance shall become effective when passed by the City Council of the City
of Hialeah and signed by the Mayor of the City of Hialeah. [ Footnote * ] Respondent advances the additional governmental interest in prohibiting
the slaughter or sacrifice of animals in areas of the city not zoned for slaughterhouses,
see Brief for Respondent 28-31, and the District court found this interest to be compelling,
see 723 F.Supp. 1467, 1486 (SD Fla. 1989). This interest cannot justify Ordinances
87-40, 87-52, and 87-71, for they apply to conduct without regard to where it occurs.
Ordinance 87-72 does impose a locational restriction, but this asserted governmental
interest is a mere restatement of the prohibition itself, not a justification for
it. In our discussion, therefore we put aside this asserted interest. JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins, concurring in part and concurring
in the judgment. The Court analyzes the "neutrality" and the "general applicability" of the Hialeah
ordinances in separate sections (Parts II-A and II-B, respectively), and allocates
various invalidating factors to one or the other of those sections. If it were necessary
to make a clear distinction between the two terms, I would draw a line somewhat different
from the Court's. But I think it is not necessary, and would frankly acknowledge that
the terms are not only "interrelated," ante 531, but substantially overlap. The terms "neutrality" and "general applicability" are not to be found within the
First Amendment itself, of course, but are used in Employment Div., Dept. of Human
Resources of Ore. v. Smith, 494 U.S. 872 (1990), and earlier cases to describe those
characteristics which cause a law that prohibits an activity a particular individual
wishes to engage in for religious reasons nonetheless not to constitute a "law . .
. prohibiting the free exercise" of religion within the meaning of the First Amendment.
In my view, the defect of lack of neutrality applies primarily to those laws that
by their terms impose disabilities on the basis of religion (e.g., a law excluding
members of a certain sect from public benefits, cf. McDaniel v. Paty, 435 U.S. 618
(1978)), see Bowen v. Roy, 476 U.S. 693, 703 -704 (1986) (opinion of Burger, C.J.);
whereas the defect of lack of general applicability applies primarily to those laws
which, though neutral in their terms, through their design, construction, or enforcement
target the practices of a particular religion for discriminatory treatment, see Fowler
v. Rhode Island, 345 U.S. 67 (1953). But certainly a law that is not of general applicability
(in the sense [508 U.S. 520, 558] I have described) can be considered "nonneutral";
and certainly no law that is nonneutral (in the relevant sense) can be thought to
be of general applicability. Because I agree with most of the invalidating factors
set forth in Part II of the Court's opinion, and because it seems to me a matter of
no consequence under which rubric ("neutrality," Part II-A, or "general applicability,"
Part II-B) each invalidating factor is discussed, I join the judgment of the Court
and all of its opinion except 2 section 2 of Part II-A. I do not join that section, because it departs from the opinion's general focus on
the object of the laws at issue to consider the subjective motivation of the lawmakers,
i.e., whether the Hialeah City Council actually intended to disfavor the religion
of Santeria. As I have noted elsewhere, it is virtually impossible to determine the
singular "motive" of a collective legislative body, see, e.g., Edwards v. Aguillard,
482 U.S. 578, 636 -639 (1987) (dissenting opinion), and this Court has a long tradition
of refraining from such inquiries, see, e.g., Fletcher v. Peck, 6 Cranch 87, 130-131
(1810) (Marshall, C.J.); United States v. O'Brien, 391 U.S. 367, 383 -384 (1968). Perhaps there are contexts in which determination of legislative motive must be undertaken.
See, e.g., United States v. Lovett, 328 U.S. 303 (1946). But I do not think that is
true of analysis under the First Amendment (or the Fourteenth, to the extent it incorporates
the First). See Edwards v. Aguillard, supra, at 639 (SCALIA, J., dissenting). The
First Amendment does not refer to the purposes for which legislators enact laws, but
to the effects of the laws enacted: "Congress shall make no law . . . prohibiting
the free exercise [of religion]. . . ." This does not put us in the business of invalidating
laws by reason of the evil motives of their authors. Had the Hialeah City Council
set out resolutely to suppress the practices of Santeria, but ineptly adopted ordinances
that failed to do so, I do not see how those laws could be said to "prohibi[t] the
free exercise" of religion. [508 U.S. 520, 559] Nor, in my view, does it matter that
a legislature consists entirely of the purehearted, if the law it enacts in fact singles
out a religious practice for special burdens. Had the ordinances here been passed
with no motive on the part of any councilman except the ardent desire to prevent cruelty
to animals (as might in fact have been the case), they would nonetheless be invalid. JUSTICE SOUTER, concurring in part and concurring in the judgment. This case turns on a principle about which there is no disagreement, that the Free
Exercise Clause bars government action aimed at suppressing religious belief or practice.
The Court holds that Hialeah's animal sacrifice laws violate that principle, and I
concur in that holding without reservation. Because prohibiting religious exercise is the object of the laws at hand, this case
does not present the more difficult issue addressed in our last free exercise case,
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), which
announced the rule that a "neutral, generally applicable" law does not run afoul of
the Free Exercise Clause even when it prohibits religious exercise in effect. The
Court today refers to that rule in dicta, and, despite my general agreement with the
Court's opinion, I do not join Part II, where the dicta appear, for I have doubts
about whether the Smith rule merits adherence. I write separately to explain why the
Smith rule is not germane to this case, and to express my view that, in a case presenting
the issue, the Court should reexamine the rule Smith declared. I According to Smith, if prohibiting the exercise of religion results from enforcing
a "neutral, generally applicable" law, the Free Exercise Clause has not been offended.
Id., at 878-880. I call this the Smith rule to distinguish it from the noncontroversial
principle, also expressed in Smith, though [508 U.S. 520, 560] established long before,
that the Free Exercise Clause is offended when prohibiting religious exercise results
from a law that is not neutral or generally applicable. It is this noncontroversial
principle, that the Free Exercise Clause requires neutrality and general applicability,
that is at issue here. But before turning to the relationship of Smith to this case,
it will help to get the terms in order, for the significance of the Smith rule is
not only in its statement that the Free Exercise Clause requires no more than "neutrality"
and "general applicability," but also in its adoption of a particular, narrow conception
of free exercise neutrality. That the Free Exercise Clause contains a "requirement for governmental neutrality,"
Wisconsin v. Yoder, 406 U.S. 205, 220 (1972), is hardly a novel proposition; though
the term does not appear in the First Amendment, our cases have used it as shorthand
to describe, at least in part, what the Clause commands. See, e.g., Jimmy Swaggart
Ministries v. Board of Equalization of Cal., 493 U.S. 378, 384 (1990); Thomas v. Review
Bd. of Indiana Employment Security Div., 450 U.S. 707, 717 (1981); Yoder, supra, at
220; Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756, 792 -793
(1973); School Dist. of Abington v. Schempp, 374 U.S. 203, 222 (1963); see also McDaniel
v. Paty, 435 U.S. 618, 627 -629 (1978) (plurality opinion) (invalidating a non-neutral
law without using the term). Nor is there anything unusual about the notion that the
Free Exercise Clause requires general applicability, though the Court, until today,
has not used exactly that term in stating a reason for invalidation. See Fowler v.
Rhode Island, 345 U.S. 67 (1953); cf. Minneapolis Star & Tribune Co. v. Minnesota
Comm'r of Revenue, 460 U.S. 575, 585 (1983); Larson v. Valente, 456 U.S. 228, 245
-246 (1982). 1 [508 U.S. 520, 561] While general applicability is, for the most part, self-explanatory, free exercise
neutrality is not self-revealing. Cf. Lee v. Weisman, 505 U.S. 577, 627 (1992) (SOUTER,
J., concurring) (considering Establishment Clause neutrality). A law that is religion
neutral on its face or in its purpose may lack neutrality in its effect by forbidding
something that religion requires or requiring something that religion forbids. Cf.
McConnell & Posner, An Economic Approach to Issues of Religious Freedom, 56 U.Chi.L.Rev.
1, 35 (1989) ("A regulation is not neutral in an economic sense if, whatever its normal
scope or its intentions, it arbitrarily imposes greater costs on religious than on
comparable nonreligious activities"). A secular law, applicable to all, that prohibits
consumption of alcohol, for example, will affect members of religions that require
the use of wine differently from members of other religions and nonbelievers, disproportionately
burdening the practice of, say, Catholicism or Judaism. Without an exemption for sacramental
wine, Prohibition may fail the test of religion neutrality. 2 It does not necessarily follow from that observation, of course, that the First Amendment
requires an exemption from Prohibition; that depends on the meaning of neutrality
as the Free Exercise Clause embraces it. The point here is the unremarkable one that
our common notion of neutrality is broad enough to cover not merely what might be
called formal neutrality, which, as a free exercise requirement, would [508 U.S. 520,
562] only bar laws with an object to discriminate against religion, but also what
might be called substantive neutrality, which, in addition to demanding a secular
object, would generally require government to accommodate religious differences by
exempting religious practices from formally neutral laws. See generally Laycock, Formal,
Substantive, and Disaggregated Neutrality Toward Religion, 39 DePaul L.Rev. 993 (1990).
If the Free Exercise Clause secures only protection against deliberate discrimination,
a formal requirement will exhaust the Clause's neutrality command; if the Free Exercise
Clause, rather, safeguards a right to engage in religious activity free from unnecessary
governmental interference, the Clause requires substantive, as well as formal, neutrality.
3 Though Smith used the term "neutrality" without a modifier, the rule it announced
plainly assumes that free exercise neutrality is of the formal sort. Distinguishing
between laws whose "object" is to prohibit religious exercise and those that prohibit
religious exercise as an "incidental effect," Smith placed only the former within
the reaches of the Free Exercise Clause; the latter, laws that satisfy formal neutrality,
Smith would subject to no free exercise scrutiny at all, even when they prohibit religious
exercise in application. 494 U.S., at 878 . The four Justices who rejected the Smith
rule, by contrast, read the Free Exercise Clause as embracing what I have termed substantive
neutrality. The enforcement of a law "neutral on its face," they said, may "nonetheless
offend [the Free Exercise Clause's] requirement for [508 U.S. 520, 563] government
neutrality if it unduly burdens the free exercise of religion." Id., at 896 (opinion
of O'CONNOR, J., joined by Brennan, Marshall, and BLACKMUN, JJ.) (internal quotation
marks and citations omitted). The rule these Justices saw as flowing from free exercise
neutrality, in contrast to the Smith rule, "requir[es] the government to justify any
substantial burden on religiously motivated conduct by a compelling state interest
and by means narrowly tailored to achieve that interest." Id., at 894 (emphasis added). The proposition for which the Smith rule stands, then, is that formal neutrality,
along with general applicability, are sufficient conditions for constitutionality
under the Free Exercise Clause. That proposition is not at issue in this case, however,
for Hialeah's animal sacrifice ordinances are not neutral under any definition, any
more than they are generally applicable. This case, rather, involves the noncontroversial
principle, repeated in Smith, that formal neutrality and general applicability are
necessary conditions for free exercise constitutionality. It is only "this fundamental
nonpersecution principle of the First Amendment [that is] implicated here," ante,
at 523, and it is to that principle that the Court adverts when it holds that Hialeah's
ordinances "fail to satisfy the Smith requirements," ante, at 523. In applying that
principle, the Court does not tread on troublesome ground. In considering, for example, whether Hialeah's animal sacrifice laws violate free
exercise neutrality, the Court rightly observes that, "[a]t a minimum, the protections
of the Free Exercise Clause pertain if the law at issue discriminates against some
or all religious beliefs or regulates or prohibits conduct because it is undertaken
for religious reasons," ibid., and correctly finds Hialeah's laws to fail those standards.
The question whether the protections of the Free Exercise Clause also pertain if the
law at issue, though nondiscriminatory in its object, has the effect nonetheless of
placing a burden on religious exercise is not before the Court [508 U.S. 520, 564]
today, and the Court's intimations on the matter are therefore dicta. The Court also rightly finds Hialeah's laws to fail the test of general applicability,
and as the Court "need not define with precision the standard used to evaluate whether
a prohibition is of general application, for these ordinances fall well below the
minimum standard necessary to protect First Amendment rights," ante, at 543, it need
not discuss the rules that apply to prohibitions found to be generally applicable.
The question whether "there are areas of conduct protected by the Free Exercise Clause
of the First Amendment and thus beyond the power of the State to control, even under
regulations of general applicability," Yoder, 406 U.S., at 220 , is not before the
Court in this case, and, again, suggestions on that score are dicta. II In being so readily susceptible to resolution by applying the Free Exercise Clause's
"fundamental nonpersecution principle," ante, at 523, this is far from a representative
free-exercise case. While, as the Court observes, the Hialeah City Council has provided
a rare example of a law actually aimed at suppressing religious exercise, ibid., Smith
was typical of our free exercise cases, involving as it did a formally neutral, generally
applicable law. The rule Smith announced, however, was decidedly untypical of the
cases involving the same type of law. Because Smith left those prior cases standing,
we are left with a free-exercise jurisprudence in tension with itself, a tension that
should be addressed, and that may legitimately be addressed, by reexamining the Smith
rule in the next case that would turn upon its application. A In developing standards to judge the enforceability of formally neutral, generally
applicable laws against the mandates of the Free Exercise Clause, the Court has addressed
[508 U.S. 520, 565] the concepts of neutrality and general applicability by indicating,
in language hard to read as not foreclosing the Smith rule, that the Free Exercise
Clause embraces more than mere formal neutrality, and that formal neutrality and general
applicability are not sufficient conditions for free exercise constitutionality: "In a variety of ways, we have said that `[a] regulation neutral on its face may,
in its application, nonetheless offend the constitutional requirement for governmental
neutrality if it unduly burdens the free exercise of religion.'" Thomas, 450 U.S.,
at 717 (quoting Yoder, 406 U.S., at 220 ) "[T]o agree that religiously grounded conduct must often be subject to the broad
police power of the State is not to deny that there are areas of conduct protected
by the Free Exercise Clause of the First Amendment, and thus beyond the power of the
State to control, even under regulations of general applicability." Ibid. Not long before the Smith decision, indeed, the Court specifically rejected the argument
that "neutral and uniform" requirements for governmental benefits need satisfy only
a reasonableness standard, in part because "[s]uch a test has no basis in precedent."
Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136, 141 (1987) (internal
quotation marks and citations omitted). Rather, we have said, "[o]ur cases have established
that `[t]he free exercise inquiry asks whether government has placed a substantial
burden on the observation of a central religious belief or practice and, if so, whether
a compelling governmental interest justifies the burden.'" Swaggart Ministries, 493
U.S., at 384 -385 (quoting Hernandez v. Commissioner, 490 U.S. 680, 699 (1989)). Thus, we have applied the same rigorous scrutiny to burdens on religious exercise
resulting from the enforcement of formally neutral, generally applicable laws as we
have applied to burdens caused by laws that single out religious [508 U.S. 520, 566]
exercise: "`only those interests of the highest order and those not otherwise served
can overbalance legitimate claims to the free exercise of religion.'" McDaniel v.
Paty, 435 U.S., at 628 (plurality opinion) (quoting Yoder, supra, at 215). Compare
McDaniel, supra, at 628-629 (plurality opinion) (applying that test to a law aimed
at religious conduct) with Yoder, supra, at 215-229 (applying that test to a formally
neutral, general law). Other cases in which the Court has applied heightened scrutiny
to the enforcement of formally neutral, generally applicable laws that burden religious
exercise include Hernandez v. Commissioner, supra, at 699; Frazee v. Illinois Dept.
of Employment Security, 489 U.S. 829, 835 (1989); Hobbie v. Unemployment Appeals Comm'n,
supra, at 141; Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983); United
States v. Lee, 455 U.S. 252, 257 -258 (1982); Thomas, supra, at 718; Sherbert v. Verner,
374 U.S. 398, 403 (1963); and Cantwell v. Connecticut, 310 U.S. 296, 304 -307 (1940). Though Smith sought to distinguish the free-exercise cases in which the Court mandated
exemptions from secular laws of general application, see 494 U.S., at 881 -885, I
am not persuaded. Wisconsin v. Yoder and Cantwell v. Connecticut, according to Smith,
were not true free-exercise cases, but "hybrid[s]" involving "the Free Exercise Clause
in conjunction with other constitutional protections, such as freedom of speech and
of the press, or the right of parents . . . to direct the education of their children."
Smith, supra, at 881, 882. Neither opinion, however, leaves any doubt that "fundamental
claims of religious freedom [were] at stake." Yoder, supra, at 221. See also Cantwell,
supra, at 303-307. 4 [508 U.S. 520, 567] And the distinction Smith draws strikes me
as ultimately untenable. If a hybrid claim is simply one in which another constitutional
right is implicated, then the hybrid exception would probably be so vast as to swallow
the Smith rule, and, indeed, the hybrid exception would cover the situation exemplified
by Smith, since free speech and associational rights are certainly implicated in the
peyote ritual. But if a hybrid claim is one in which a litigant would actually obtain
an exemption from a formally neutral, generally applicable law under another constitutional
provision, then there would have been no reason for the Court in what Smith calls
the hybrid cases to have mentioned the Free Exercise Clause at all. Smith sought to confine the remaining free exercise exemption victories, which involved
unemployment compensation [508 U.S. 520, 568] systems, see Frazee, supra; Hobbie v.
Unemployment Appeals Comm'n of Fla. 480 U.S. 136 (1987); Thomas v. Review Bd. of Indiana
Employment Security Div., 450 U.S. 707 (1981); supra; and Sherbert, supra, as "stand[ing]
for the proposition that where the State has in place a system of individual exemptions,
it may not refuse to extend that system to cases of "religious hardship" without compelling
reason." 494 U.S., at 884 . But prior to Smith, the Court had already refused to accept
that explanation of the unemployment compensation cases. See Hobbie, supra, at 142,
n. 7; Bowen v. Roy, 476 U.S., at 715 -716 (opinion of BLACKMUN, J.); id., at 727-732
(opinion of O'CONNOR, J., joined by Brennan and Marshall, JJ.); id., at 733 (WHITE,
J., dissenting). And, again, the distinction fails to exclude Smith: "If Smith is
viewed as a hypothetical criminal prosecution for peyote use, there would be an individual
governmental assessment of the defendants' motives and actions in the form of a criminal
trial." McConnell, Free Exercise Revisionism and the Smith Decision, 57 U.Chi.L.Rev.
1109 1124 (1990). Smith also distinguished the unemployment compensation cases on
the ground that they did not involve "an across-the-board criminal prohibition on
a particular form of conduct." 494 U.S., at 884 . But even Chief Justice Burger's
plurality opinion in Bowen v. Roy, on which Smith drew for its analysis of the unemployment
compensation cases, would have applied its reasonableness test only to "denial of
government benefits" and not to "governmental action or legislation that criminalizes
religiously inspired activity or inescapably compels conduct that some find objectionable
for religious reasons," Bowen v. Roy, supra, at 706 (opinion of Burger, C.J., joined
by Powell and REHNQUIST, JJ.); to the latter category of governmental action, it would
have applied the test employed in Yoder, which involved an across-the-board criminal
prohibition and which Chief Justice Burger's opinion treated as an ordinary free-exercise
[508 U.S. 520, 569] case. See Bowen v. Roy, 476 U.S. at 706-707; id., at 705, n. 15;
Yoder, 406 U.S., at 218 ; see also McDaniel v. Paty, 435 U.S., at 628 , n. 8 (noting
cases in which courts considered claims for exemptions from general criminal prohibitions,
cases the Court thought were "illustrative of the general nature of free exercise
protections and the delicate balancing required by our decisions in [Sherbert and
Yoder,] when an important state interest is shown"). As for the cases on which Smith primarily relied as establishing the rule it embraced,
Reynolds v. United States, 98 U.S. 145 (1879), and Minersville School Dist. v. Gobitis,
310 U.S. 586 (1940), see Smith, supra, at 879, their subsequent treatment by the Court
would seem to require rejection of the Smith rule. Reynolds, which, in upholding the
polygamy conviction of a Mormon, stressed the evils it saw as associated with polygamy,
see 98 U.S., at 166 ("polygamy leads to the patriarchal principle, and . . . fetters
the people in stationary despotism"); id., at 165, 168, has been read as consistent
with the principle that religious conduct may be regulated by general or targeting
law only if the conduct "pose[s] some substantial threat to public safety, peace or
order." Sherbert v. Verner, 374 U.S., at 403 ; see also United States v. Lee, 455
U.S., at 257 -258; Bob Jones University, 461 U.S., at 603 ; Yoder, supra, at 230.
And Gobitis, after three Justices who originally joined the opinion renounced it for
disregarding the government's constitutional obligation "to accommodate itself to
the religious views of minorities," Jones v. Opelika, 316 U.S. 584, 624 (1942) (opinion
of Black, Douglas, and Murphy, JJ.), was explicitly overruled in West Virginia Bd.
of Ed. v. Barnette, 319 U.S. 624, 642 (1943); see also id., at 643-44 (Black and Douglas,
JJ., concurring). Since holding in 1940 that the Free Exercise Clause applies to the States, see Cantwell
v. Connecticut, 310 U.S. 296 , the Court repeatedly has stated that the Clause sets
strict limits on the government's power to burden religious exercise, whether it is
a law's object to do so or its [508 U.S. 520, 570] unanticipated effect. Smith responded
to these statements by suggesting that the Court did not really mean what it said,
detecting in at least the most recent opinions a lack of commitment to the compelling
interest test in the context of formally neutral laws. Smith, supra, at 884-885. But
even if the Court's commitment were that palid, it would argue only for moderating
the language of the test, not for eliminating constitutional scrutiny altogether.
In any event, I would have trouble concluding that the Court has not meant what it
has said in more than a dozen cases over several decades, particularly when, in the
same period, it repeatedly applied the compelling-interest test to require exemptions,
even in a case decided the year before Smith. See Frazee v. Illinois Dept. of Employment
Security, 489 U.S. 829 (1989). 5 In sum, it seems to me difficult to escape [508 U.S.
520, 571] the conclusion that, whatever Smith's virtues, they do not include a comfortable
fit with settled law. B The Smith rule, in my view, may be reexamined consistently with principles of stare
decisis. To begin with, the Smith rule was not subject to "full-dress argument" prior
to its announcement. Mapp v. Ohio, 367 U.S. 643, 676 -677 (1961) (Harlan, J., dissenting).
The State of Oregon, in Smith, contended that its refusal to exempt religious peyote
use survived the strict scrutiny required by "settled free exercise principles," inasmuch
as the State had "a compelling interest in regulating" the practice of peyote use
and could not "accommodate the religious practice without [508 U.S. 520, 572] compromising
its interest." Brief for Petitioners in Smith, O.T. 1989, No. 88-1213, p. 5; see also
id. at 5-36; Reply Brief for Petitioners in Smith, pp. 6-20. Respondents joined issue
on the outcome of strict scrutiny on the facts before the Court, see Brief for Respondents
in Smith, pp. 14-41, and neither party squarely addressed the proposition the Court
was to embrace, that the Free Exercise Clause was irrelevant to the dispute. Sound
judicial decisionmaking requires "both a vigorous prosecution and a vigorous defense"
of the issues in dispute, Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 419 (1978),
and a constitutional rule announced sua sponte is entitled to less deference than
one addressed on full briefing and argument. Cf. Ladner v. United States, 358 U.S.
169, 173 (1958) (declining to address "an important and complex" issue concerning
the scope of collateral attack upon criminal sentences because it had received "only
meagre argument" from the parties, and the Court thought it "should have the benefit
of a full argument before dealing with the question"). The Smith rule's vitality as precedent is limited further by the seeming want of
any need of it in resolving the question presented in that case. JUSTICE O'CONNOR
reached the same result as the majority by applying, as the parties had requested,
"our established free exercise jurisprudence," 494 U.S., at 903 , and the majority
never determined that the case could not be resolved on the narrower ground, going
instead straight to the broader constitutional rule. But the Court's better practice,
one supported by the same principles of restraint that underlie the rule of stare
decisis, is not to "`formulate a rule of constitutional law broader than is required
by the precise facts to which it is to be applied.'" Ashwander v. TVA, 297 U.S. 288,
347 (1936) (Brandeis, J., concurring) (quoting Liverpool, New York & Philadelphia
S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885)). While I am not suggesting
that the Smith Court lacked the power to announce its rule, I think a rule of law
unnecessary to the outcome of a case, especially one not put [508 U.S. 520, 573] into
play by the parties, approaches without more the sort of "dicta . . . which may be
followed if sufficiently persuasive but which are not controlling." Humphrey's Executor
v. United States, 295 U.S. 602, 627 (1935); see also Kastigar v. United States, 406
U.S. 441, 454 -455 (1972). I do not, of course, mean to imply that a broad constitutional rule announced without
full briefing and argument necessarily lacks precedential weight. Over time, such
a decision may become "part of the tissue of the law," Radovich v. National Football
League, 352 U.S. 445, 455 (1957) (Frankfurter, J., dissenting), and may be subject
to reliance in a way that new and unexpected decisions are not. Cf. Planned Parenthood
of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854 -855 (1992). Smith, however,
is not such a case. By the same token, by pointing out Smith's recent vintage, I do
not mean to suggest that novelty alone is enough to justify reconsideration. "[S]tare
decisis," as Justice Frankfurter wrote, "is a principle of policy, and not a mechanical
formula," Helvering v. Hallock, 309 U.S. 106, 119 (1940), and the decision whether
to adhere to a prior decision, particularly a constitutional decision, is a complex
and difficult one that does not lend itself to resolution by application of simple,
categorical rules, but that must account for a variety of often competing considerations. The considerations of full briefing, necessity, and novelty thus do not exhaust the
legitimate reasons for reexamining prior decisions, or even for reexamining the Smith
rule. One important further consideration warrants mention here, however, because
it demands the reexamination I have in mind. Smith presents not the usual question
of whether to follow a constitutional rule, but the question of which constitutional
rule to follow, for Smith refrained from overruling prior free exercise cases that
contain a free exercise rule fundamentally at odds with the rule Smith declared. Smith,
indeed, announced its rule by relying [508 U.S. 520, 574] squarely upon the precedent
of prior cases. See 494 U.S., at 878 ("Our decisions reveal that the . . . reading"
of the Free Exercise Clause contained in the Smith rule "is the correct one"). Since
that precedent is nonetheless at odds with the Smith rule, as I have discussed above,
the result is an intolerable tension in free exercise law which may be resolved, consistently
with principles of stare decisis, in a case in which the tension is presented and
its resolution pivotal. While the tension on which I rely exists within the body of our extant case law,
a rereading of that case law will not, of course, mark the limits of any enquiry directed
to reexamining the Smith rule, which should be reviewed in light not only of the precedent
on which it was rested, but also of the text of the Free Exercise Clause and its origins.
As for text, Smith did not assert that the plain language of the Free Exercise Clause
compelled its rule, but only that the rule was "a permissible reading" of the Clause.
ibid. Suffice it to say that a respectable argument may be made that the pre-Smith
law comes closer to fulfilling the language of the Free Exercise Clause than the rule
Smith announced. "[T]he Free Exercise Clause . . ., by its terms, gives special protection
to the exercise of religion," Thomas, 450 U.S., at 713 , specifying an activity and
then flatly protecting it against government prohibition. The Clause draws no distinction
between laws whose object is to prohibit religious exercise and laws with that effect,
on its face seemingly applying to both. Nor did Smith consider the original meaning of the Free Exercise Clause, though overlooking
the opportunity was no unique transgression. Save in a handful of passing remarks,
the Court has not explored the history of the Clause since its early attempts in 1879
and 1890, see Reynolds v. United States, 98 U.S., at 162 -166, and Davis v. Beason,
133 U.S. 333, 342 (1890), attempts that recent scholarship makes clear were incomplete.
See generally McConnell, The Origins and Historical Understanding of Free Exercise
of Religion, [508 U.S. 520, 575] 103 Harv.L.Rev. 1409 (1990). 6 The curious absence
of history from our free exercise decisions creates a stark contrast with our cases
under the Establishment Clause, where historical analysis has been so prominent. 7 This is not the place to explore the history that a century of free exercise opinions
have overlooked, and it is enough to note that, when the opportunity to reexamine
Smith presents itself, we may consider recent scholarship raising serious questions
about the Smith rule's consonance with the original understanding and purpose of the
Free Exercise Clause. See McConnell, The Origins and Historical Understanding of Free
Exercise of Religion, supra; Durham, Religious Liberty and the Call of Conscience,
42 DePaul L.Rev. 71, 79-85 (1992); see also Office of Legal Policy, U.S. Dept. of
Justice, Report to the Attorney General, Religious Liberty under the Free Exercise
Clause 38-42 (1986) (predating Smith). There appears to be a strong argument [508
U.S. 520, 576] from the Clause's development in the First Congress, from its origins
in the post-Revolution state constitutions and pre-Revolution colonial charters, and
from the philosophy of rights to which the Framers adhered, that the Clause was originally
understood to preserve a right to engage in activities necessary to fulfill one's
duty to one's God, unless those activities threatened the rights of others or the
serious needs of the State. If, as this scholarship suggests, the Free Exercise Clause's
original "purpose [was] to secure religious liberty in the individual by prohibiting
any invasions thereof by civil authority," School Dist. of Abington v. Schempp, 374
U.S., at 223 , then there would be powerful reason to interpret the Clause to accord
with its natural reading, as applying to all laws prohibiting religious exercise in
fact, not just those aimed at its prohibition, and to hold the neutrality needed to
implement such a purpose to be the substantive neutrality of our pre-Smith cases,
not the formal neutrality sufficient for constitutionality under Smith. 8 [508 U.S.
520, 577] The scholarship on the original understanding of the Free Exercise Clause is, to
be sure, not uniform. See, e.g., Hamburger, A Constitutional Right of Religious Exemption:
An Historical Perspective, 60 Geo.Wash.L.Rev. 915 (1992); Bradley, Beguiled: Free
Exercise Exemptions and the Siren Song of Liberalism, 20 Hofstra L.Rev. 245 (1991).
And there are differences of opinion as to the weight appropriately accorded original
meaning. But whether or not one considers the original designs of the Clause binding,
the interpretive significance of those designs surely ranks in the hierarchy of issues
to be explored in resolving the tension inherent in free exercise law as it stands
today. III The extent to which the Free Exercise Clause requires government to refrain from
impeding religious exercise defines nothing less than the respective relationships
in our constitutional democracy of the individual to government and to God. "Neutral,
generally applicable" laws, drafted as they are from the perspective of the nonadherent,
have the unavoidable potential of putting the believer to a choice between God and
government. Our cases now present competing answers to the question when government,
while pursuing secular ends, may compel disobedience to what one believes religion
commands. The case before us is rightly decided without resolving the existing tension,
which remains for another day when it may be squarely faced. Footnotes [ Footnote 1 ] A law that is not generally applicable according to the Court's definition
(one that "selective[ly] impose[s] burdens only on conduct motivated by religious
belief," ante, at 21) would, it seems to me, fail almost any test for neutrality.
Accordingly, the cases stating that the Free Exercise [508 U.S. 520, 561] Clause requires
neutrality are also fairly read for the proposition that the Clause requires general
applicability. [ Footnote 2 ] Our cases make clear, to look at this from a different perspective,
that an exemption for sacramental wine use would not deprive Prohibition of neutrality.
Rather, "[s]uch an accommodation [would] `reflec[t] nothing more than the governmental
obligation of neutrality in the face of religious differences.'" Wisconsin v. Yoder,
406 U.S. 205, 235 , n. 22 (1972) (quoting Sherbert v. Verner, 374 U.S. 398, 409 (1963));
see also Lee v. Weisman, 505 U.S. 577, 627 (1992) (SOUTER, J., concurring). The prohibition
law in place earlier this century did, in fact, exempt "wine for sacramental purposes."
National Prohibition Act, Title 11, 3, 41 Stat. 308. [ Footnote 3 ] One might further distinguish between formal neutrality and facial
neutrality. While facial neutrality would permit discovery of a law's object or purpose
only by analysis of the law's words, structure, and operation, formal neutrality would
permit enquiry also into the intentions of those who enacted the law. Compare ante,
at 540-542 (opinion of KENNEDY, J., joined by STEVENS J.) with ante, p. 557 (opinion
of SCALIA, J., joined by REHNQUIST, C.J.) For present purposes, the distinction between
Formal and facial neutrality is less important than the distinction between those
conceptions of neutrality and substantive neutrality. [ Footnote 4 ] Yoder, which involved a challenge by Amish parents to the enforcement
against them of a compulsory school attendance law, mentioned the parental rights
recognized in Pierce v. Society of Sisters, 268 U.S. 510 (1925), as Smith pointed
out. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872,
881 , n. 1 (1990) (citing Yoder, 406 U.S., at 233 ). But Yoder did so only to distinguish
Pierce, which involved a [508 U.S. 520, 567] substantive due process challenge to
a compulsory school attendance law and which required merely a showing of "`reasonable[ness].'"
Wisconsin v. Yoder, 406 U.S. 205, 233 (1972). (quoting Pierce, supra, at 535). Where
parents make a "free exercise claim," the Yoder Court said, the Pierce reasonableness
test is inapplicable and the State's action must be measured by a stricter test, the
test developed under the Free Exercise Clause and discussed at length earlier in the
opinion. See 406 U.S., at 233 ; id., at 213-229. Quickly after the reference to parental
rights, the Yoder opinion makes clear that the case involves "the central values underlying
the Religion Clauses." Id., at 234. The Yoders raised only a free exercise defense
to their prosecution under the school attendance law, id., at 209, and n. 4; certiorari
was granted only on the free exercise issue, id., at 207; and the Court plainly understood
the case to involve "conduct protected by the Free Exercise Clause" even against enforcement
of a "regulatio[n] of general applicability," id., at 220. As for Cantwell, Smith pointed out that the case explicitly mentions freedom of speech.
See 494 U.S., at 881 , n. 1 (citing Cantwell v. Connecticut, 310 U.S. 296, 307 (1940)).
But the quote to which Smith refers occurs in a portion of the Cantwell opinion (titled:
"[s]econd," and dealing with a breach-of-peace conviction for playing phonograph records,
see 310 U.S., at 307 ) that discusses an entirely different issue from the section
of Cantwell that Smith cites as involving a "neutral, generally applicable law" (titled:
"[f]irst," and dealing with a licensing system for solicitations, see Cantwell, supra,
at 303-307). See Smith, supra, at 881. [ Footnote 5 ] Though Smith implied that the Court, in considering claims for exemptions
from formally neutral, generally applicable laws, has applied a "water[ed] down" version
of strict scrutiny, 494 U.S., at 888 , that appraisal confuses the cases in which
we purported to apply strict scrutiny with the cases in which we did not. We did not
purport to apply strict scrutiny in several cases involving discrete categories of
governmental action in which there are special reasons to defer to the judgment of
the political branches, and the opinions in those cases said in no uncertain terms
that traditional heightened scrutiny applies outside those categories. See O'Lone
v. Estate of Shabazz, 482 U.S. 342, 349 (1987) ("Prison regulations . . . are judged
under a `reasonableness' test less restrictive than that ordinarily applied to alleged
infringements of fundamental constitutional rights"); Goldman v. Weinberger, 475 U.S.
503, 507 (1986) ("Our review of military regulations challenged on First Amendment
grounds is far more deferential than constitutional review of similar laws or regulations
designed for civilian society"); see also Johnson v. Robison, 415 U.S. 361, 385 -386
(1974); Gillette v. United States, 401 U.S. 437, 462 (1971). We also did not purport
to apply strict scrutiny in several cases in which the claimants failed to establish
a constitutionally cognizable burden on religious exercise, and again the opinions
in those cases left no doubt that heightened scrutiny applies to the enforcement of
formally neutral, general laws that do burden free exercise. See Jimmy Swaggart Ministries
v. Board of Equalization of Cal., 493 U.S. 378, 384 -385 (1990) ("Our cases have established
that [t]he free exercise inquiry asks whether government [508 U.S. 520, 571] has placed
a substantial burden on the observation of a central religious belief or practice
and, if so whether a compelling governmental interest justifies the burden") (internal
quotation marks and citation omitted); Lyng v. Northwest Indian Cemetery Protective
Assn., 485 U.S. 439, 450 (1988) ("[T]his Court has repeatedly held that indirect coercion
or penalties on the free exercise of religion, not just outright prohibitions, are
subject to [the] scrutiny" employed in Sherbert v. Verner, 374 U.S. 398 (1963); see
also Braunfeld v. Brown, 366 U.S. 599 606-607 (1961) (plurality opinion). Among the
cases in which we have purported to apply strict scrutiny, we have required free exercise
exemptions more often than we have denied them. Compare Frazee v. Illinois Dept. of
Employment Security, 489 U.S. 829 (1989); Hobbie v. Unemployment Appeals Comm'n, 480
U.S. 136 (1987); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S.
707 (1981); Wisconsin v. Yoder, 406 U.S. 205 (1972); Cantwell v. Connecticut, 310
U.S. 196 (1940), with Hernandez v. Commissioner, 490 U.S. 680 (1989); Bob Jones University
v. United States, 461 U.S. 574 (1983); United States v. Lee, 455 U.S. 252 (1982).
And of the three cases in which we found that denial of an exemption survived strict
scrutiny (all tax cases), one involved the government's "fundamental, overriding interest
in eradicating racial discrimination in education," Bob Jones University, supra, at
604; in a second, the Court "doubt[ed] whether the alleged burden . . . [was] a substantial
one," Hernandez, supra, at 699; and the Court seemed to be of the same view in the
third. See Lee, supra, at 261, n. 12. These cases, I think, provide slim grounds for
concluding that the Court has not been true to its word. [ Footnote 6 ] Reynolds denied the free exercise claim of a Mormon convicted of polygamy,
and Davis v. Beason upheld against a free exercise challenge a law denying the right
to vote or hold public office to members of organizations that practice or encourage
polygamy. Exactly what the two cases took from the Free Exercise Clause's origins
is unclear. The cases are open to the reading that the Clause sometimes protects religious
conduct from enforcement of generally applicable laws, see supra, at 569 (citing cases);
that the Clause never protects religious conduct from the enforcement of generally
applicable laws, see Smith, 494 U.S,. at 879; or that the Clause does not protect
religious conduct at all, see Yoder, 406 U.S., at 247 (Douglas, J., dissenting in
part); McConnell, The Origins and Historical Understanding of Free Exercise of Religion,
103 Harv.L.Rev. 1409, 1488, and n. 404 (1990). [ Footnote 7 ] See Engel v. Vitale, 370 U.S. 421, 425 -436 (1962); McGowan v. Maryland,
366 U.S. 420, 431 -443 (1961); Everson v. Board of Ed. of Ewing, 330 U.S. 1, 8 -16
(1947); see also Lee v. Weisman, 505 U.S. 577, 612 -616,, 622-626 (1992) (SOUTER,
J., concurring); Wallace v. Jaffree, 472 U.S. 38, 91 -107 (1985) (REHNQUIST, J., dissenting);
School Dist. of Abington v. Schempp, 374 U.S. 203, 232 -239 (1963) (Brennan, J., concurring);
McGowan v. Maryland, supra, at 459-495 (Frankfurter, J., concurring); Everson, supra,
at 31-43 (Rutledge, J., dissenting). [ Footnote 8 ] The Court today observes that "historical instances of religious persecution
and intolerance . . . gave concern to those who drafted the Free Exercise Clause."
Ante, at 10 (internal quotation marks and citations omitted). That is no doubt true,
and of course it supports the proposition for which it was summoned, that the Free
Exercise Clause forbids religious persecution. But the Court's remark merits this
observation: The fact that the Framers were concerned about victims of religious persecution
by no means demonstrates that the Framers intended the Free Exercise Clause to forbid
only persecution, the inference the Smith rule requires. On the contrary, the eradication
of persecution would mean precious little to a member of a formerly persecuted sect
who was nevertheless prevented from practicing his religion by the enforcement of
"neutral, generally applicable" laws. If what drove the Framers was a desire to protect
an activity they deemed special, and if "the [Framers] were well aware of potential
conflicts between religious conviction and social duties," A. Adams & C. Emmerich,
A Nation Dedicated to Religious Liberty 61 (1990), they may well have hoped to bar
not only prohibitions of religious exercise fueled by the hostility of the majority,
but prohibitions flowing from the indifference or ignorance of the majority as well. JUSTICE BLACKMUN, with whom JUSTICE O'CONNOR joins, concurring in the judgment. The Court holds today that the city of Hialeah violated the First and Fourteenth
Amendments when it passed a set of restrictive ordinances explicitly directed at petitioners'
religious practice. With this holding, I agree. I write separately to emphasize that
the First Amendment's protection of religion extends beyond those rare occasions on
which the government explicitly targets religion (or a particular [508 U.S. 520, 578]
religion) for disfavored treatment, as is done in this case. In my view, a statute
that burdens the free exercise of religion "may stand only if the law in general,
and the State's refusal to allow a religious exemption in particular, are justified
by a compelling interest that cannot be served by less restrictive means." Employment
Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 907 (1990) (dissenting
opinion). The Court, however, applies a different test. It applies the test announced
in Smith, under which "a law that is neutral and of general applicability need not
be justified by a compelling governmental interest even if the law has the incidental
effect of burdening a particular religious practice." Ante, at 531. I continue to
believe that Smith was wrongly decided, because it ignored the value of religious
freedom as an affirmative individual liberty, and treated the Free Exercise Clause
as no more than an antidiscrimination principle. See 494 U.S., at 908 -909. Thus,
while I agree with the result the Court reaches in this case, I arrive at that result
by a different route. When the State enacts legislation that intentionally or unintentionally places a
burden upon religiously motivated practice, it must justify that burden by "showing
that it is the least restrictive means of achieving some compelling state interest."
Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 718 (1981).
See also Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). A State may no more create
an underinclusive statute, one that fails truly to promote its purported compelling
interest, than it may create an overinclusive statute, one that encompasses more protected
conduct than necessary to achieve its goal. In the latter circumstance, the broad
scope of the statute is unnecessary to serve the interest, and the statute fails for
that reason. In the former situation, the fact that allegedly harmful conduct falls
outside the statute's scope belies a governmental assertion that it has genuinely
pursued an interest "of the highest order." Ibid. If the State's goal is important
enough to prohibit religiously motivated activity, it [508 U.S. 520, 579] will not
and must not stop at religiously motivated activity. Cf. Zablocki v. Redhail, 434
U.S. 374, 390 (1978) (invalidating certain restrictions on marriage as "grossly underinclusive
with respect to [their] purpose"); Supreme Court of N. H. v. Piper, 470 U.S. 274,
285 , n. 19 (1985) (a rule excluding nonresidents from the bar of New Hampshire "is
underinclusive . . . because it permits lawyers who move away from the State to retain
their membership in the bar"). In this case, the ordinances at issue are both overinclusive and underinclusive in
relation to the state interests they purportedly serve. They are overinclusive, as
the majority correctly explains, because the "legitimate governmental interests in
protecting the public health and preventing cruelty to animals could be addressed
by restrictions stopping far short of a flat prohibition of all Santeria sacrificial
practice." Ante, at 538. They are underinclusive as well, because, "[d]espite the
city's proffered interest in preventing cruelty to animals, the ordinances are drafted
with care to forbid few killings but those occasioned by religious sacrifice." Ante,
at 543. Moreover, the "ordinances are also underinclusive with regard to the city's
interest in public health. . . ." Ante, at 544. When a law discriminates against religion as such, as do the ordinances in this case,
it automatically will fail strict scrutiny under Sherbert v. Verner, 374 U.S. 398,
402 -403, 407 (1963) (holding that governmental regulation that imposes a burden upon
religious practice must be narrowly tailored to advance a compelling state interest).
This is true because a law that targets religious practice for disfavored treatment
both burdens the free exercise of religion and, by definition, is not precisely tailored
to a compelling governmental interest. Thus, unlike the majority, I do not believe that "[a] law burdening religious practice
that is not neutral or not of general application must undergo the most rigorous of
scrutiny." Ante, at 546. In my view, regulation that targets religion in this way,
ipso facto, fails strict scrutiny. It is for this reason [508 U.S. 520, 580] that
a statute that explicitly restricts religious practices violates the First Amendment.
Otherwise, however, "[t]he First Amendment . . . does not distinguish between laws
that are generally applicable and laws that target particular religious practices."
Smith, 494 U.S., at 894 (opinion concurring in judgment). It is only in the rare case that a state or local legislature will enact a law directly
burdening religious practice as such. See ibid. Because respondent here does single
out religion in this way, the present case is an easy one to decide. A harder case would be presented if petitioners were requesting an exemption from
a generally applicable anticruelty law. The result in the case before the Court today,
and the fact that every Member of the Court concurs in that result, does not necessarily
reflect this Court's views of the strength of a State's interest in prohibiting cruelty
to animals. This case does not present, and I therefore decline to reach, the question
whether the Free Exercise Clause would require a religious exemption from a law that
sincerely pursued the goal of protecting animals from cruel treatment. The number
of organizations that have filed amicus briefs on behalf of this interest, * however,
demonstrates that it is not a concern to be treated lightly. [ Footnote * ] See Brief for Washington Humane Society in support of Respondent;
Brief for People for the Ethical Treatment of Animals, New Jersey Animal Rights Alliance,
and Foundation for Animal Rights Advocacy in support of Respondent; Brief for Humane
Society of the United States, American Humane Association, American Society for the
Prevention of Cruelty to Animals, Animal Legal Defense Fund, Inc., and Massachusetts
Society for the Prevention of Cruelty to Animals in support of Respondent; Brief for
International Society for Animal Rights, Citizens for Animals, Farm Animal Reform
Movement, In Defense of Animals, Performing Animal Welfare Society, and Student Action
Corps for Animals in support of Respondent; and Brief for the Institute for Animal
Rights Law, American Fund for Alternatives to Animal Research, Farm Sanctuary, Jews
for Animal Rights, United Animal Nations, and United Poultry Concerns in support of
Respondent. [508 U.S. 520, 581]